On August 16, 1952, a collision occurred on a public highway in Scott County between automobiles owned by the plaintiff and defendant respectively. Plaintiff’s car was driven by her husband, with her consent. She was riding in the automobile as a passenger. Defendant was driving her own car. Both automobiles were traveling in the same direction. As plaintiff’s ear approached a private driveway leading from the left side of the highway to the plant of the Bendix Aircraft Corporation, the driver prepared to make a left turn for the purpose of entering this drive. The defendant, coming from the rear, had just passed two other cars and was about to pass plaintiff’s when she observed that plaintiff’s automobile was about to turn. She endeavored to swing to the right, but a collision occurred with resultant damage to both cars and personal injuries to the plaintiff, Whether plaintiff’s ear had swung to the left so as to he *711 upon or partly upon its left side of the highway was in dispute in the evidence, and for the purpose of our discussion here is not important.
I. Both parties in argument concede that the important question in the case concerns the trial court’s instructions upon the question of imputed contributory negligence of plaintiff’s husband, the driver of her car, to the plaintiff herself. The plaintiff assigns error upon the court’s instructions upon this point, and in view of the argument of the parties and the fact that we find no merit in plaintiff’s other assignments we think it the only one necessary to discuss.
The trial court, in its Instruction No. 6, after pointing out that it was conceded that the car was driven by John T. Stuart, plaintiff’s husband, with her consent, told the jury: “Consequently, if you find that John T. Stuart was negligent in any of the respects charged by the defendant as set forth in the statement of the issues herein, such negligence would be imputed to and would likewise be the negligence of the plaintiff, Emma Belle Stuart.”
In Instruction No. 7, which enumerated the matters which the plaintiff must establish by a preponderance of the evidence in order to recover, the court said: “3. That the plaintiff was free from any negligence which in any manner or degree contributed directly to plaintiff’s injuries and damage; and in this regard you will! keep in mind that the contributory negligence, if amy, of John T. Stuart would be imputed to and wotdd therefore be the contributory negligence of Emma Belle Stuart.” (Italics supplied.)
While it is plaintiff’s apparent thought that Instruction No. 6 referred to contributory negligence, it may well be that the court was therein referring to the direct actionable negligence of the driver of • plaintiff’s car pleaded in defendant’s counterclaim. In this view of the instruction, it was correct. Section 321.493 of the 1954 Code of Iowa, which has been incorporated in our statutory law in substantially its present form since 1919 (see chapter 275, section 12, Acts of the Thirty-eighth (General Assembly) is herewith set out:
“In all cases where damage is dope by any car by reason of *712 negligence of the driver, and driven with the consent of the owner, the owner of the car shall be liable for such damage.”
It is evident, therefore, that as to the damages claimed by defendant in her counterclaim, this instruction laid down the correct rule of law. But by Instruction No. 7 the court in unequivocal terms made the contributory negligence of the driver of plaintiff’s automobile the contributory negligence of the plaintiff herself. It told the jury plainly that the contributory negligence of the driver was imputed to the plaintiff as a matter of law; and since the jury was likewise told in other instructions that plaintiff must show her freedom from such negligence, it barred her recovery if the driver of her car was guilty of any negligence contributing to her injuries and damage. The correctness of this instruction is the controlling question in the case.
II. It must be conceded that in giving the challenged part of Instruction No. 7 the able trial court was but following the law as determined by this court in prior decisions. In Secured Finance Co. v. Chicago, Rock Island
&
Pacific Railway Co.,
“The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby if he would not otherwise have been liable.” 5 Am. Jur., Automobiles, section 354.
*713 “The owner’s presence in his car at the time an injury occurs while it is being operated by another will not of itself preclude his right to recover for injury or damage.” 5 Am. Jur., Automobiles, section 496.
See also Virginia Railway & Power Co. v. Gorsuch,
This brings us to the difficult point in the case. We now believe the rule adopted in the Secured Finance Company case to be demonstrably unsound. But it was followed since its promulgation by this court in 1929. It has been followed, without analysis or comment, in at least two cases.
In Rogers v. Jefferson,
In re Estate of Green,
The problem before us now is whether more harm will be done by overruling our previous cases in order to install *714 what we think is clearly the correct principle, or by adhering to an unsound decision in the interest of the rule of stare decisis. It is of the greatest importance that the law should be settled. Fairness to the trial courts, to the legal profession, and above all to citizens generally demands that interpretations once made should be overturned only for the most cogent reasons. The law should be progressive; it should advance with changing conditions. But this does not mean that its forward progress should be over the dead bodies of slain and discarded precedents. Legal authority must be respected; not because it is venerable with age, but because it is important that courts, and lawyers and their clients may know what the law is and order their affairs accordingly.
We have concluded here, however, that more mischief will be done by adhering to the precedent established in the Secured Finance Company case than by overruling it. It proceeds upon a wrong principle, built upon a false premise, and arrives at an erroneous conclusion. It is of course incumbent upon us to make clear our reasons for so determining.
This court in reaching its decision in the Secured Finance Company case seems to have based it upon two lines of reasoning and authority: First, that our “owner’s responsibility” statute (section 321.493, supra) created the relation of principal and agent between the owner and the driver, for all purposes relating to the operation of the car; and second, the “two-way” doctrine, that since the statute makes the owner liable for the actionable negligence of the consent driver, it must follow that the latter’s contributory negligence is to be imputed to him. The first reason misconceives the intent and language of the statute; the second is an obvious non sequitur. The opinion also cites and apparently gives weight to a New York case, Psota v. Long Island Railway Co.,
At the time of the enactment of chapter 275, Acts of the 38th G-. A., supra, the rule was firmly established in Iowa that the owner of a motor vehicle who permitted another to drive it when no relation of principal and agent, master and servant, partnership or joint venture existed, was ordinarily a mere bailor and being such was not liable for the negligence of his bailee in the operation of the car. Neubrand v. Kraft,
The court in holding as it did in the Secured Finance Company ease followed an earlier case, Maine v. James Maine & Sons
*716
Co.,
In Lind v. Eddy,
We approved the holdings in the last two cited cases in Krausnick v. Haegg Roofing Co.,
It is evident that the principal-and-agent theory is unsound, and if followed finds in the statute something which is not there and leads to undesirable results. It is neither' necessary nor wise to go beyond the language of the statute itself to determine its meaning, when its wording is clear.
We turn then to a consideration of the so-called “two-way” rule; the contention that if the owner is liable for damages for the direct and actionable negligence of his consent driver, he must also be bound by such driver’s contributory negligence if he, the owner, suffers damage. It is a theory that upon first consideration appears plausible, but upon analysis is readily found to be without support, either in the statute itself or in reason. We have said there is no language in the statute which supports such a conclusion, and that the purpose of the enactment was to provide a means of compensation for third parties injured through the negligence of the driver whom the owner
*717
has entrusted with the operation of his car. But there is no indication the legislature meant to relieve a negligent third parts" from the result of damage he may have caused the car owner, even though the latter’s driver was guilty also of some contributing negligence. It is said if we do not hold to the rule of imputed contributory negligence as heretofore announced by this court, we may have a situation where two owners of automobiles, driven at the time by consent drivers, may each recover his damages from the other. Such was the common-law rule. The possibility of such an outcome was recognized and accepted in Mills v. Gabriel, supra,
“Not only would it not be illogical to allow the bailors to recover from each other’s bailee, which would be the situation at common law anyway, but the policy of the statute would thus be well illustrated in giving the bailors a recovery against each other.”
Our statute, section 321.493, supra, by its terms operates only when the consent driven car does some damage. So if it collided with another vehicle without injuring the latter or its occupants, or if the driver of another vehicle in some negligent manner occasioned damage to the consent driven automobile without a direct collision between the two cars, our owner’s responsibilitj" statute would have no application. It is only “where damage is done by any car by reason of negligence of the driver” that it comes into play. (Italics supplied.) Under the circumstances suggested above, where no damage was done to another vehicle or person, the owner of the consent driven car might well seek to recover for his own damages in an appropriate action. By what logie, then, can it be said he would be faced with an imputation of the contributory negligence of the driver of his car, if such there was? Such an interpretation is clearly not within the language of the statute, and should not be read into it by a forced and unnatural construction. We think the legislature intended to protect third parties from the *718 negligence of the bailee-driver of another’s car; we find nothing to indicate it also intended to relieve such third parties from the consequences of their own negligence. To so hold is an unwarranted extension of the often harsh doctrine of contributory negligence; we cannot so construe the statute.
III. Authority upon the point at issue is not overwhelming, but the question has been considered. We are told by the appellee that California, the District of Columbia, Louisiana and some courts of New York follow the same rule we announced in Secured Finance Co. v. Chicago, R. I. & P. Ry. Co., supra. We have already pointed out that the New York court of last resort has now, in two cases, settled the law in that state by holding the contributory negligence of the driver is not imputed to. the owner because of their owner’s responsibility statute. In California the holding obviously turns upon the peculiar wording of the statute. Prior to 1937 the California statute was in effect similar to ours. But in that year the legislature amended it by adding these words: “and the negligence of such person [the driver] shall be imputed to the owner
for all purposes of ■ civil damages-.”
(Italics supplied.) The California Supreme Court, in Milgate v. Wraith,
In Di Leo v. Du Montier, La. App.,
On the other hand, the Supreme Court of Minnesota, in an exhaustive and well-reasoned opinion, has held the contributory negligence of the driver is not imputed to the owner because of the owner’s responsibility statute when the owner brings his action for damages. The Minnesota statute is much stronger than ours in supporting such an imputation, since it has the express provision that the driver is the agent of the owner, the wording being this: “* * * the operator thereof shall in case of accident, be deemed the agent of the owner of such motor vehicle in the operation thereof.” Yet in Christensen v. Hennepin Transportation Co., supra,
The question is discussed by Gregory, in his “Legislative Loss Distribution in Negligence Action”, page 150, and the conclusion reached that the view the contributory negligence of the driver is not imputable to the owner is preferable and most in line with the real purpose of the owner’s responsibility statutes. To the same effect is 17 Cornell L.Q. 158, 169, supra.
Consideration is given to the question in 28 Iowa Law Review 132, and the soundness of the Secured Finance Company case is doubted. It is there said: “A fair analysis of the purposes *720 of this statute might well have led to a contrary result. * * * There would seem to be no need or public interest served by extending the theory of responsibility of the owner for the driver’s negligence beyond that specifically provided in the statute. The negligent third party deserves no immunity from damages as against a non-negligent bailor.” To which we add as an even more cogent reason that there is no indication in the statute itself that the legislature intended to give him any such immunity.
The case of Maine v. James Maine & Sons Co., supra,
IV. Other errors assigned and argued by the appellant are without merit. The matter discussed in the preceding divisions requires that the case be remanded for another trial. — Reversed and remanded.