ON MOTION EOR REHEARING.
Per Curiam.This action against the Whitehall Chevrolet Company and Miss Frances Menge was brought on the theory that Miss Menge, the driver of the automobile which caused the alleged injuries to the plaintiff, was the agent of Whitehall Chevrolet Company. Many acts of negligence were alleged against Miss Menge, and responsibility therefor was charged to the Whitehall Chevrolet Company because of the alleged relationship of principal and, agent between Whitehall Chevrolet Company and Miss Menge. The petition also set out certain independent acts of negligence against the Whitehall Chevrolet Company, to which we shall presently refer. The facts set out disclosed that Miss Menge was a prospective' purchaser of the car in question from the Whitehall Chevrolet Company, and that at the time of the alleged injury to the plaintiff she had been entrusted by that company with possession of the car for the purpose of testing its qualities. We held that the “relationship between a dealer and a prospective customer driving an automobile to test it out is that of bailor and bailee, and not that of principal and agent or master and servant,” and therefore that the facts alleged in the petition affirmatively disclosed that the relationship of principal and agent, as alleged, did not exist between Whitehall Chevrolet Company and Miss Menge. We are bound by the facts, and not by legal conclusions. We further held that a bailor of an automobile is not responsible for the negligent acts of the bailee in operating it. Now, as against the defendant Whitehall Chevrolet Company, the petition alleges that it was negligent: “ (a) in not maintaining the brakes on said automobile in a workable condition and in a state of good repair; (b) in not maintaining the horn or warning signal on said automobile in a workable condition or state of good repair; (c) in instructing defendant Menge to operate said automobile around the City of Atlanta while same was in a state of bad repair, in so far as the brakes and horn thereon were, concerned; (d) in not repairing said automobile *138after the purchase of the same from said Grogan, prior to any use thereof; (e) in not testing said automobile to ascertain its condition prior to said defendant company instructing defendant Menge to operate the same around the streets of Atlanta.” Upon these allegations of negligence the case against the Whitehall Chevrolet Company must stand or fall. If the petition, when construed most strongly against the plaintiff, should affirmatively show that the alleged acts of negligence charged against this defendant did not contribute to and were not the proximate cause of the injury to plaintiff, then it must fall before a general demurrer. This is indisputable. We said in -the original opinion that “under the allegations of the petition the accident might have occurred as it did if the bailee had been supplied with a car properly equipped in every respect.”
In answer to the contention that if there “be reasonable grounds for two opinions,” the question whether the particular negligence charged against the defendant is one to be determined by the jury, ,'we say that it is so plainly and indisputably true from a proper construction of the pleadings that the negligence of the defendant Whitehall Chevrolet Company did not contribute to the injuries sustained by the plaintiff, that it may be resolved on demurrer. As against Miss Menge the petition in the most material parts charges negligence as follows: “(a) in running through a red light, as heretofore more specifically stated. . . (e) in not warning petitioner by a warning device of said defendant’s intention to run over petitioner; (d) in not applying the brakes and stopping said automobile prior to running over petitioner; (e) in not swerving said automobile so as to pass to one side of petitioner; (f) in operating said automobile out of control.” It therefore appears that Miss Menge operated the car at the time and place in a negligent manner (in operating said automobile out of control, etc.), and did not attempt, to apply the bralces or sound any horn. Therefore, under the allegations of the petition, if the defendant had furnished to her a car' equipped with perfect brakes and an efficient horn, the accident would have nevertheless occurred. The petition malees no allegation that Miss Menge was negligent in operating a car without serviceable brakes or a good horn after she knew or ought to have known of such conditions, nor is there any allegation that she attempted to blow the horn and apply the *139brakes, and that because of their defective condition they would not work. Whitehall Chevrolet Company might have been charged in the petition with furnishing to Miss Menge a car with a dangerous and defective tire which might be expected to blow out and cause the car to swerve, thus endangering lives of others using the streets, but it could hardly be said that the company would for this reason be liable for any injury done to another person by being run into by Miss Menge, without an allegation that the tire did blow out and cause the car to swerve and thus cause the injury. We therefore remain of the opinion that the judge properly sustained the general demurrer and dismissed the action. One case cited by counsel in his motion for rehearing is Charles System Inc. v. Juliano, 62 App. D. C. 283 (66 Fed. (2d) 931). However, this case fully sustains our position. There it was shown that the driver of the car, the bailee, attempted to use the brakes in trying to avoid injury to the plaintiff, and that the brakes did not work. The court said: “Even though plaintiff had negligently put himself in a position of peril, if defendant Tutz [the bailee] saw that position and had an opportunity to save the plaintiff by exercising reasonable care and failed to do so, yet the plaintiff could recover against Tutz for his failure; while if Tutz duly attempted to save the plaintiff in his peril, and failed because of negligence of the defendant company, the plaintiff may recover against the company.” (Italics ours.)
Rehearing denied.
Broyles, G.J., and Guerry, J., concur. MacIntyre, J., dissents.