¶1 Former opinion set aside and case affirmed on rehearing March 28, 1933
¶2 On Eehearing
¶3 (20 P. (2d) 395)
¶4 The main question presented on the rehearing of this case is whether we should adhere to the family-purpose doctrine in cases involving automobile accidents, as enunciated in Foster v. Farra, *618117 Or. 286 (243 P. 778), or adopt in lien thereof the strict agency doctrine which is the yardstick used by many states in measuring parents’ liability for the torts of their minor children. In the former opinion in this case it was strongly intimated that the family-purpose doctrine should be overruled as illogical and unsound in principle. It was considered unnecessary either to uphold or to repudiate that doctrine, due to the fact that the deceased was at the time of the accident riding in the front seat of the automobile as one of four passengers, in violation of law and contrary to what is said to have been the express prohibition of the defendant, whose son was driving the automobile.
¶5 For over seven years the family-purpose doctrine, or, as sometimes referred to, the family-car doctrine, has been a rule of liability in this state, and the same should not now be overturned unless there is some good and cogent reason for so doing. It is desirable that there be uniformity and stability in our decisions; that we do not declare the law to be one thing today and something else tomorrow; and that we do not deny today relief which we yesterday granted. Yet, on the other hand, we should not, under the cloak of stare decisis, pursue a course of action which has been clearly demonstrated unsound in principle and harsh and unjust in application.
¶6 With the advent of the automobile, the mode of transportation by slow-moving horse-drawn vehicles soon changed, and with this change came many complications. The present-day demand for greater speed, coupled with the ever increasing use of the automobile in business and for recreation and pleasure, presents new problems which many courts are attempting to meet and solve in a sensible and practical man *619 ner. Today in many families an automobile is considered an indispensable adjunct of living. In almost every family possessing an automobile tbe children over 16 years of age are permitted to, and do, use the car for their own pleasure and convenience. Although the motor vehicle is no longer regarded as inherently dangerous, it “is, potentially, a dangerous instrumentality, as the appalling number of fatalities brought about every day by its operation bear distressing witness”: District of Columbia v. Colts, 282 U. S. 63 (51 S. Ct. 52, 75 L. Ed. 177).
¶7 In Foster v. Farra, supra, the rule of liability adopted unanimously by this court, sitting in banc, was expressed as follows:
“As to the other feature of the case, relating to the management of the automobile by the minor son of the defendant Walter H. Parra, while there is a contrariety of opinion upon the question, the rule adopted in several states is, that one who keeps an automobile for the pleasure and convenience of himself and his family is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family. As to whether the son was engaged in the father’s business, it is the rule, supported by the better weight of authority, that where a father provides an automobile for the purpose of furnishing members of his family with outdoor recreation, the use of the car for such purposes is within the scope of the father’s business, analogously to the furnishing of food and clothing or ministering to their health”: citing many authorities.
¶8 There are, however, many states, and they constitute a majority of those which have directly passed upon the question here involved, which still apply the strict agency doctrine in cases of this kind: that is, that the parent can not be held liable for the torts of *620 the members of his family committed while operating the automobile for their own pleasure and convenience. It is unnecessary here to cite authorities upholding or opposing these two theories, as the same may be found collected and discussed in the following periodical and texts: 26 Michigan Law Review 864; Huddy’s Cyclopedia of Automobile Law (9th Ed.) Vols. 7 and 8, §126; Berry on Automobiles (6th Ed.) §1473 and § 1474; Arkin v. Page, 287 Ill. 420 (123 N. E. 30, 5 A. L. R. 216).
¶9 An attempt to reconcile the two conflicting views on this subject would be utterly futile. The states adhering to the strict agency doctrine consider that the courts, commonly referred to as less conservative, which have adopted and applied the family-purpose doctrine are departing from long-established principles of the law of master and servant or principal and agent, and that any change in this respect should be brought about by legislative action rather than through court decisions. Yet many of those more conservative courts do not hesitate to hold the father Hable in cases wherein the minor son or daughter driving the ear is accompanied by another member of the family. In such instances the liability of the father is based upon the theory that the member of the family operating the automobile assumes the role of chauffeur and thereby the relationship of master and servant or principal and agent between the father and son or daughter is brought into existence. This appears to be somewhat of a distinction without a difference. In discussing this aspect of the question, the Supreme Court of West Virginia in the case of Jones v. Cook, 90 W. Va. 710 (111 S. E. 828), remarked:
“We see no possible ground of difference concerning the owner’s liability, whether there be but one *621 member of tbe family or all members of tbe family in the automobile at the time of the negligent injury. If the father makes it his business or affair to furnish members of his family with an automobile for family-use, and he maintains it for that purpose, just the same as it is his business to furnish them with food and clothing, or to minister to their health in other ways, then he is in the furtherance of that business just as surely, when a single member of the family is driving it for his own pleasure and convenience, as if all the family were riding in it. Counsel for defendant say thát defendant is not liable for the negligence of the stepdaughter in the operation of the automobile in the present case, because it was none of his affair; but we hold that he made it his affair by maintaining the automobile for the very purpose for which she was using it at the time of the injury. He owned the machine, and had the right to say where, how, and by whom it might be used, and implied, if not expressly, authorized the use to which it was put when the accident occurred. The doctrine of agency is not confined to merely commercial business transactions, but extends to cases where the father maintains an automobile for family use, with a general authority, expressed or implied, that it may be used for the comfort, convenience, pleasure and entertainment or outdoor recreation of members of the owner’s family. … This view was also applied in cases of horse-drawn vehicles, decided before the introduction of the automobile. Schaefer v. Osterbrink (1886), 67 Wis. 495, 58 Am. Rep. 875, 30 N. W. 922; Lashbrook v. Patten (1864), 1 Duv. (Ky.) 316. It is not a new graft on the law of agency. It is merely applying old principles to new conditions”.
¶10 The past has witnessed many changes, brought about by court decisions, in the law of master and servant and principal and agent. It is therefore unreasonable to assume that the courts will in the future remain stationary just because some court-made rule *622 of liability has not heretofore been applied to new and changed conditions. It took no legislation to bring into existence the defenses which a few years past were available to the master, to wit: Fellow-servant doctrine, assumption of risk and contributory negligence. The growth of the doctrine of principal and agent belongs “to a condition of society in which commercial transactions are highly developed”. This doctrine was little heard of during the time of Blackstone.
¶11 Many of the courts in condemning the family-purpose doctrine remark that, the automobile is no longer considered as inherently dangerous, intimating thereby that, if it were otherwise, the parent owning the car would be liable for injury done by a member of his family while driving the same. Although not inherently dangerous, an automobile is, as said by the Supreme Court of the United States, potentially a dangerous instrumentality. In the hands of an inexperienced or careless driver a motor vehicle is nothing short of a public menace. Public policy therefore demands that owners of automobiles be held to the strictest account for any negligence in their operation resulting in injury to others.
¶12 In King v. Smythe, 140 Tenn. 217 (204 S. W. 296, L. R. A. 1918F, 293), the Supreme Court of Tennessee said:
“It is true that an automobile is not a dangerous instrumentality so as to make the owner liable, as in the case of a wild animal loose on the streets; but, as a matter of practical justice to those who are injured, we cannot close our eyes to the fact that an automobile possesses excessive weight, that it is capable of running at a rapid rate of speed, and when moving rapidly upon the streets of a populous city, it is dangerous to life and limb and must be operated with care. If an instrumentality of this kind is placed in the hands *623 of Ms family by a father, for the family’s pleasure, comfort, and entertainment, the dictates of natural justice should require that the owner should be responsible for its negligent operation, because only by doing so, as a general rule, can substantial justice be attained. A judgment for damages against an infant daughter or an infant son, or a son without support and without property, who is living as a member of the family, would be an empty form. The father, as owner of the automobile and as head of the family, can prescribe the conditions upon which it may be run upon the roads and streets, or he can forbid its use altogether. He must know the nature of the instrument and the probability that its negligent operation will produce injury and damage to others. We think the practical administration of justice between the parties is more the duty of the court than the preservation of some esoteric theory concermng the law of principal and agent. If owners of automobiles are made to understand that they will be held liable for injury to person and property occasioned by their negligent operation by infants or others who are financially irresponsible, they will doubtless exercise a greater degree of care in selecting those who are permitted to go upon the public streets with such dangerous instrumentalities. An automobile cannot be compared with golf sticks and other small articles bought for the pleasure of the family. They are not used on public highways, and are not of the same nature of automobiles”.
¶13 The following states appear to be definitely committed to the family-purpose doctrine: Arizona, Colorado, Connecticut, Georgia, Iowa, Kentucky, Minnesota, Nebraska, New Mexico, North Carolina, North Dakota, South Carolina, Tennessee, Texas, Washington and West Virginia. In addition to the foregoing there are several other states which have been similarly classed by courts and annotators. New York, MicMgan and California are often mentioned as states wMch have passed legislation in wMch is incorporated the prin *624 ciple of the family-purpose doctrine. The great weight of authority, however, neither upholds nor condemns this doctrine.
¶14 The mere fact that the decedent was, at the time of the accident, riding with three other people in the front seat of the automobile in violation of the law, would not, of itself, prevent recovery. The father, as stated in the former opinion, knew the custom of his son with reference to having his school-mates and friends with him while operating the car. He did not, according to his testimony, know of his son’s operating the car with three other people in the front seat. In fact, he stated that he had forbidden his son to do so. Ernest Hurner, driver of the car, gave the following testimony:
“Q. You and Ronald and these two girls had been running around in the car a great deal together, hadn’t you?
‘ A. I don’t know as you would call it a great deal, but quite often”.
¶15 .There was sufficient evidence in the case to justify stibmitting to the jury the question of whether or not the defendant knew or should have known of his son’s practice in this respect. Accidents quite frequently result from the violation of some traffic law or regulation, and the mere fact that the parent had warned his son against violating the law by exceeding the speed limit or by carrying four people in the front seat wpuld not relieve the father from responsibility under the family-purpose doctrine, unless the one injured thereby was guilty of contributory negligence.
¶16 We find no good reason why we should depart from the holding in the case of Foster v. Farra, supra. Since that decision there have been four sessions of our state legislature and no attempt has been made to abolish the rule there announced.
¶17*625 The first eleven assignments of error relate to the refusal of the trial court to give certain instructions requested by the defendant and to the exception taken by defendant to certain instructions given by the court. These assignments of error involve the question of whether or not the family-purpose doctrine applies in this case and, for the purpose of argument, have been considered together by appellant. They have already been disposed of by what has hereinbefore been said.
¶18 At the trial the defendant excepted to the refusal of the court to give the following requested instruction:
“Where one is faced with an emergency which constituted imminent danger the law does not require of him that he act with the same degree of care, caution, or good judgment that he would be required to exercise in the absence of the emergency. He is only bound to exercise that degree of care which a reasonably prudent person would exercise under the circumstances having had no opportunity to plan and to come to a correct judgment”.
¶19 It was not necessary for the driver of the car to have been guilty of wilful or wanton negligence. The court, however, did give the following instruction relating to this matter:
“The driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.
“The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaldng and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety. … #
“If at the time that Ernest Hurner attempted to pass the other cars the situation was such that a rea *626 sonably prudent person would not have apprehende'd danger from the approaching car, then in so attempting to pass the other car going in the same direction, the son would not be guilty of negligence, but if the left side was not clearly visible, as I have said before, and free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety, and if he endeavored to do so, then of course, he would be guilty of negligence, but that is a question of fact for you to determine under the evidence you have heard.
“If you find from the evidence that the defendant’s son, Ernest Hurner, found himself confronted by an emergency which constituted an imminent and impending danger due to the unexpected approach of a car approaching in an opposite direction the fact that in attempting to escape from such imminent danger he turned to the left or made a mistake in judgment, would not make him guilty of negligence, unless his actions at such time and place were not those of an ordinarily prudent person so faced with a like emergency. A mistake in judgment is not negligence. However, if by his own negligence, Ernest Hurner brought about the perilous situation, he cannot avail himself of the benefit of this doctrine”.
¶20 The foregoing instruction fully covered the situation and no error was committed in failing to give the instruction on the same subject requested by the defendant.
¶21 The accident in which plaintiff’s decedent was killed occurred late at night on March 12, 1929. The next day the defendant and three other men called at the home of plaintiff and her husband, W. A. McDowell, expressed their sympathy over the loss which the Mc-Dowells had suffered and wanted to assist them in bearing the funeral' expenses. After they had been there a few minutes, a release was signed by W. A. McDowell and Alva S. McDowell purporting to “re *627 lease and discharge Alex Hurner and/or Ernest Hurner and/or Individual Underwriting Corporation, all and each of them, from all claims, controversies, demands, actions or causes of action on account of injuries,” etc., due to the death of Vivian McDowell. The consideration paid for the release was cited as five hundred dollars. A similar release was signed by W. A. McDowell as administrator of the estate of Vivian McDowell, deceased, wherein the same consideration was expressed. At that time W. A. McDowell was not the administrator of the estate, but on the same day and at the instance of the same men Mr. McDowell signed a petition presented to him by them requesting his appointment as such administrator. The order appointing him is claimed to have been signed late that night by the county judge, but the petition for, and the order of, his appointment were not filed until March 14,1929. Later, but after the release was signed, he resigned as administrator and Alva S. McDowell was appointed administratrix.
¶22 At the conference above mentioned, the defendant and the men accompanying him expressed a willingness to assist Mr. and Mrs. McDowell in bearing the expenses incident to the funeral of the decedent. Very little or no discussion was had as to any claim by the estate of the decedent for damages suffered by reason of decedent’s death. While the document signed purported to be a release of all claims of whatsoever nature against the defendant, Ms son and the Individual Underwriting Corporation, nevertheless Mr. and Mrs. McDowell claimed that it was represented to them as relating only to the funeral expenses and that Mr. McDowell, as administrator, signed the release with that understanding. In discussing a somewhat *628 similar situation, this court, in the case of Peluck v. Pacific Machine & Blacksmith Co., 134 Or. 171 (293 P. 417), said:
“Ordinarily, courts look with favor upon settlement of controversies which may lead to litigation, but a release executed under the circumstances as disclosed by the record in this case should be subjected to close scrutiny. The parties were not dealing at arm’s length. Plaintiff did not have the benefit of independent advice and he was not in a physical or mental condition to determine matters vitally affecting his welfare. A hospital is a poor place to transact business. There was no need of haste. It is doubtful if plaintiff knew what it was all about. Accepting his testimony as true, there was no explanation given to him of the writing which he signed, and even had he read the same he was not capable of understanding it. In the light of this evidence, this court cannot say, as a matter of law, that plaintiff knowingly gave Ms assent to release the defendant from all liability for the injuries sustained”.
¶23 In view of the foregoing, and under the authority of Olston v. Oregon W. P. & Ry. Co., 52 Or. 343 (96 P. 1095, 97 P. 538, 20 L. R. A. (N. S.) 915), and Wood v. Young, 127 Or. 235 (271 P. 734), the question of Avhether or not the release signed by W. A. McDowell as administrator of the estate of Vivian McDowell, deceased, was obtained by fraud or misrepresentation was for the jury to determine and was properly submitted for its decision.
¶24 We have considered appellant’s other assignments of error, but find that the trial court committed no prejudicial error. It follows that our previous decision was in error and that the judgment appealed from should be affirmed.