CLARK, Chief Judge (dissenting).
I would affirm the judgment below, based as it is on a jury verdict rendered upon persuasive evidence in accordance with a charge accepting the realities of modern highway traffic in the United States for Vermont as well.
Appellant Noonan employed Slock-bower, the nonappealing co-defendant and driver of appellant’s automobile at the time of the accident, to drive him and his wife on a vacation trip in Vermont. This employment took Slockbower away from his home in New Jersey. He had no regular hours and was required to hold himself ready to drive for Noonan at any time. This in fact follows the pattern of relationship previously exist ing between the two. The jury found that as part compensation for this employment Slockbower had the right to use Noonan’s car whenever Noonan did not require his services. He was using the car under this term of his employment agreement at the time of the accident. On these facts Judge Gibson charged the jury that under Vermont law it could find Slockbower acting within the scope -of his employment at the time of the accident and accordingly could hold appellant liable for plaintiff’s injuries.
Although the Vermont courts seem never to have passed on the liability of an employer for the acts of an employee while using the employer’s automobile as compensation for his services, Judge Gibson’s ruling is supported by substantial .authority in other jurisdictions, including New Jersey, a state whose decisions are often cited with approval by Vermont courts. Ferris v. McArdle, 92 N.J.L. 580, 106 A. 460; Arnold v. Ollendorf, 9 N.J. Misc. 1198, 157 A. 127; Halsey v. Metz, Mo.App.1936, 93 S.W.2d 41, 44; Byrnes v. Poplar Bluff Printing Co., Mo.1934, 74 S.W.2d 20; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66, 77-78; and see annotations in 122 A.L.R. 858, 881, and 52 A.L.R.2d 350, 383. “The fact that the driver had no regular hours of employment, but might be called at any time both day and evening under a steady employment, is a circumstance to consider.” Moore v. Roddie, 103 Wash. 386, 174 P. 648, 649-650, modified 106 Wash. 548, 180 P. 879 (where defendant was held liable for his chauffeur’s negligence while driving defendant’s car to dinner after the chauffeur had finished his services for the day).
Certainly Noonan benefited by Slock-bower’s use of the car in his off hours. In addition Noonan always retained the “control” of this use, although he might choose not to exercise it. Moreover, Slockbower’s right to use the automobile was clearly a term of his employment. Where all these elements are present there seems to be no good reason to shield the employer from liability. In holding that Vermont law, applicable here under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, requires the opposite result, the majority takes a too rigid view of that law contrary to, and most certainly not required by, the Erie doctrine.
The reasoning of the opinion herewith rests almost entirely on the Supreme Court of Vermont’s rejection of the “family purpose” doctrine in Jones v. Knapp, 104 Vt. 5, 156 A. 399, in 1931. But the “law” of Vermont applicable to this case is a predictive estimate of how that state’s courts today would rule on the question at bar, not a blind obeisance to what may well be an outmoded decision. See, e. g., Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 306 U.S. 103, 59 S.Ct. 420, 83 L.Ed. 515; Pomerantz v. Clark, D.C.Mass., 101 F. Supp. 341, 345-347. The aim of the Erie decision was to make uniform the results of litigation in the state courts and in the federal courts under our diversity jurisdiction. It is not furtherance of this aim and it is productive of a situation even less desirable than that Erie sought to correct for the federal courts to bind themselves to state court decisions long after the court which rendered them has revised its thinking. Vermont law is not uniquely immutable. See cases collected in Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 209 note 4, 76 S.Ct. 273, 280, 100 L.Ed. 199, showing that “the Vermont Supreme Court does not obstinately adhere to its past decisions, that for it too law is living.”
So we cannot reverse the trial court on the basis of the Jones case without determining whether the widespread trend of the law expanding vicarious liability in cases of this sort for generally accepted considerations of public policy has not influenced the Supreme Court of Vermont in the more than a quarter century since that decision. Following the instructions of the Supreme Court, we should inquire if “there appears to be * * * confusion in the Vermont decisions, * * * developing line of authorities that easts a shadow over the established ones, * * * dicta, doubts or ambiguities in the opinions of Vermont judges on the question, * * * legislative development that promises to undermine the judicial rule.” Bernhardt v. Polygraphic Co. of America, supra, 350 U.S. 198, 205, 76 S.Ct. 273, 277, 100 L.Ed. 199.
Jones v. Knapp, supra, 104 Vt. 5, 156 A. 399, is applicable to this case at best only by way of analogy somewhat remote. The actual decision was that an adult daughter did not so far represent her father in driving his car with his permission that her contributory negligence would bar his recovery of damages for injury to the car. In so holding, the court was able to avoid a technical bar to a recovery of damages for negligent driving. It did, however, expressly disavow the “family purpose” doctrine. Here appellant was found to be liable on a quite different ground, namely, that Slockbower, having been granted the úse of the automobile as compensation for his employment, was acting within the scope of that employment relationship when he availed himself of this contractual right. Moreover, perhaps to counteract the strictness of the Jones decision, the Vermont courts have given a broad and liberal construction to the liability of an employer for acts of his employee. In Gutzwiller v. American Tobacco Co., 97 Vt. 281, 122 A. 586, a salesman was found to be acting within the scope of his employment while driving his employer’s car for his own convenience, in violation of instructions and without his employer’s consent or knowledge, during his vacation and after he had tendered his resignation.
Again, the employer’s liability has been an expanding one in Vermont in recent years. In Capello’s Adm’r v. Aero Mayflower Transit Co., 116 Vt. 64, 68 A.2d 913, in 1949, the Supreme Court of Vermont, discussing with approval Den-nery v. Great Atlantic & Pacific Tea Co., 82 N.J.L. 517, 81 A. 861, 39 L.R.A..N.S., 574, overruled its own 1926 decision in Ronan v. J. G. Turnbull Co., 99 Vt. 280, 287-88, 131 A. 788, and held that, in an action for injuries arising out of the operation of an automobile, proof that the automobile was owned by the defendant at the time of the accident makes out a prima facie case that the operator of the automobile was engaged in the defendant’s services. And, even more substantially undercutting the Jones holding, the court in Brown v. Gallipeau, 116 Vt. 290, 75 A.2d 694, held that a father appointed his son as his servant by permitting him to use the family car to visit his married sister while the father knew that the son on this same visit would deliver to the sister a present from the father. Here again the court followed a New Jersey ruling. Missell v. Hayes, 86 N.J.L. 348, 91 A. 322.
So we have here (1) a situation where in American jurisprudence there has been a steady extension of the concept of vicarious liability to meet the ever growing menace of the automobile accident on the public highways and (2) a judicial atmosphere disclosing precedents favoring — except for one 27-year-old decision on a different point — growth and develop ment in the analogous law. There is also a third factor which we should note, since it has been stressed by the Supreme Court, namely, the trial court’s familiarity with Vermont law. Thus in Bernhardt v. Polygraphic Co. of America, supra, 350 U.S. 198, 204, 76 S.Ct. 273, 277, 100 L.Ed. 199, the Court said of this very judge: “Since the federal judge making those findings is from the Vermont bar, we give special weight to his statement of what the Vermont law is.” Coming from a family devoted to law and the public service, Judge Gibson has had unique opportunities as practicing lawyer, state’s attorney and public official, senator, governor, and judge to know the possibilities of modernization in the law of his native state, certainly much more than have we with our widely different backgrounds, no one of which touches Vermont. In so delicate and developing a field of the law, I believe we would achieve justice by deferring to his views. Cf. Green, Traffic Victims 63-85 (1958).
Thus an entirely restrained and lawyerlike application of the Erie principle naturally leads, in my judgment, to a necessary affirmance of this judgment. But I doubt if such restraint is imposed on us realistically, for the Vermont justices, I expect, are as fully cognizant of the life about them as anyone else, and could hardly avoid realizing the surprise to the layman of a decision such as this, particularly in view of the narrow and technical grounds on which it rests. Had the car proceeded perhaps another minute and another mile or so before the accident, it would have been in New York, where the car owner is liable when use is merely permissive, N. Y. Vehicle and Traffic Law, McKinney’s Consol. Laws, c. 71, § 59; Mandelbaum v. United States, 2 Cir., 251 F.2d 748; Parker v. Teleseo, Sup., 111 N.Y.S.2d 481, and where more lately liability insurance or a showing of financial responsibility has been made compulsory, N. Y. Vehicle and Traffic Law, Art. 6-A, § 93 et seq. (L. 1956, c. 655, effective Feb. 1,1957). And, since the automobile was garaged in New York City, the justices might well think of the near certainty that Noonan was protected by insurance which in usual form would cover this risk; and the consequence here found so necessary would be but to exempt — at the plaintiff’s loss— an underwriter from a burden to which its premiums were already adjusted. Consideration of such popular details, so well known to all in this gasoline-conscious age, must suggest that we are pressing the Erie doctrine to a dry and wooden extreme where citizens of other states, unlike the home folk, must submit to having their rights settled or lost by dead, and not “living,” law.
. Though Noonan made vociferous, but highly equivocal, denials and counteras--sertions, it seems fairly clear that Slock-bower, who had no other occupation, had been driving quite regularly for Noonan, taking Mm to and from work in New York and New Jersey and on extensive -vacation trips throughout the east from Florida and Atlantic City to Manchester, Vermont. There is no one else shown to have participated in piling up the mileage of 29,307 miles which Noonan’s Cadillac convertible had achieved during the nine months that Noonan had owned it. Neither Noonan nor his wife could drive, and Noonan had no driver’s license. Noonan himself — either with or without his wife — had accompanied the plaintiff and her sister and Slockbower on many occasions, up the skyline drive at Equinox Mountain, Vermont, to the summer theatre at Dorset, to Benning-ton, to Manchester Center, to a stone-quarry swimming pool, and so on. So the jury’s answer to the interrogatories settled that Slockbower’s use of the Noonan car was by permission and that his right to use it at any time Noonan did not desire it was a part of his compensation.