On Petition to Behear
The petition to rehear says that the Court’s “conclusion that Hill, in driving the car to Maryville, was on a mission of his own is erroneous”. It concedes that “the Court’s conclusion is a logical one” but says that “the inference could just as easily have been that the purpose of having the mechanic look it over was for his mother to determine whether or not she would purchase or join in the purchase of the vehicle ’ ’; that is, the automobile, according to petitioner, may be regarded as being in process of demonstration to the mother as prospective purchaser, rather than to the son while being driven by him to Maryville for inspection by a mechanic.
A demonstration by the son to his mother, as prospective purchaser, rather than to himself as such, does not *136render Jenkins and Sloan any more liable than would the demonstration by the son to himself, unless the son, in so driving this automobile to Maryville, was acting as the servant or agent of Jenkins and Sloan. Apparently that is the position of petitioner.
This Court is very firmly of the opinion that the only fact conclusion permissible from the evidence is that young ITill was entrusted by Jenkins and Sloan with the possession of this automobile for the purpose of eventually concluding a sale thereof to him with his mother signing the purchase money note as an accommodation maker, if he decided to purchase it, and for its return if such were not done. This, in legal effect, was a bailment. In Breeden v. Elliott Bros., 173 Tenn. 382, 385, 118 S.W.2d 219, 220, this Court, in describing the determinative situation there and its legal result, said this: “This automobile was left with defendants for the purpose of eventually concluding a sale thereof to them. And, impliedly, for its return if the sale was not consummated. This constituted a bailment. ’ ’
Such being the ultimate fact conclusion, it is not legally permissible to hold Jenkins and Sloan liable for the negligence of young Hill. This is because “neither negligence nor, in this jurisdiction, contributory negligence of the bailee or his servants is imputable to the bailor”. Siegrist Bakery Company v. Smith, 162 Tenn. 253, 259, 36 S.W.2d 80, 81.
In point is the Oregon case of Kantola v. Lovell Auto Co., 157 Or. 534, 72 P.2d 61, annotated in 31 A.L.R.2d 1454. There, at the time of the accident, the car was “being driven by a minor who was in possession of the *137car, alone, for the purpose of driving to his home in order to induce his mother to purchase it for him”. The holding was that the dealer was not liable ‘ ‘ since the transaction created a bailment and not an agency”.
In discussing when an automobile of a dealer was being used for demonstrating purposes we referred to the Michigan case of Arnestad v. Point, and the Minnesota case of Koski v. Muccilli. They are cases in which the car was being driven by the prospective purchaser with no representative of the dealer present. The petition comments on the fact that the dealer was held liable in each of these cases. This was because there was a statute in each of those states mailing the owner of an automobile liable for negligence when being driven by a third party with the permission of the owner. There is such a permissive use statute in many of the States. It seems proper to conclude that such statutes were enacted to overcome the obstacle with which the Harrills are confronted in the instant case. But, so far, our Legislature has not seen fit to enact such a law.
The petition to rehear will have to be denied.