(dissenting). I agree with Justice O’Hara that Bricker v. Green, 313 Mich 218 (163 ALR 697) “did not abolish the ‘doctrine of imputed negligence,’ ” but only “repudiated the doctrine as *113it has previously beexx applied in actions by a blameless passenger against a third party,” where such passenger is not a joint venturer or master or principal of the driver, as borne out by the subsequent cases of Parks v. Pere Marquette R. Co., 315 Mich 38; Bostrom v. Jennings, 326 Mich 146; Ter Haar v. Steele, 330 Mich 167, and Sherman v. Korff, 353 Mich 387 (14 NCCA3d 149).
I cannot agree with Justice O’Hara’s conclusion that the contributory negligence of the ' driver, Father Reitz, is not imputable to the owner, Breimayer Chevrolet Company (and thus to its subrogee, Universal Underwriters Insurance Company), because the driver was a mere bailee and thus, under the common law, his contributory negligence is not imputable to his bailor, Breimayer.
I do not join Justice O’Hara in his opixxion concurring in Justice Adams’ reversal and remand but, to the contrary, believe the trial court’s judgment against plaintiff should be affirmed under the common law.
Appellant submits only one question, namely: Did the trial court err in answering “yes” to the question:
“Does the Michigan motor vehicle ownership liability statute (CLS 1961, § 257.401; Stat Ann 1960 Rev § 9.2101) impute negligence on the part of the permissive user of a motor vehicle to the owner thereof so as to bar the owner’s claim against a third party for damages to his vehicle caused' through the joint negligence of the permissive operator and the third party?”
Appellee in a “Counter-Statement of Questions Involved” sets forth a second question as follows:
“Under the common law, is an automobile dealer to be charged with the contributory negligence of a sales prospect in testing and operating the dealer’s *114automobile in contemplation of purchasing same when the dealer’s sales representative, acting in the course of his employment, permits the operation and accompanies the operator ?”
. The trial court answered “yes” to appellant’s question, but did not answer appellee’s question, nor did the court consider an owner dealer’s rights and duties under the common law in finding for defendant.
The appellee’s question was injected into this case from the start, as is disclosed by the “Statement Pursuant to Court Rule No. V” filed over one year before trial and signed by counsel for both parties. Paragraphs “B”, “C”, and “D” read as follows:
“B. Disputed Pacts on which Plaintiff Relies.
“Howard A." Scheid was merely a passenger in the Corvair automobile being driven by Father Reitz, and, although he was .a salesman for Breimayer Chevrolet Sales Company and was allowing Father Reitz to drive the automobile for the purpose of a possible sale, he had no control over the driving of the said Father Reitz.
“C. Disputed Facts upon which Defendant Relies.
“Howard A. Scheid was more than a passenger in the Corvair vehicle. He was an agent of the owner on his principal’s business, and had the right of control over the operation of that vehicle.
“D. Legal Theories Relied Upon.
“It is the contention of the plaintiff that the negligence of Father Reitz, driver of the Corvair automobile, is not imputed to Breimayer Chevrolet Sales Company, owner of that vehicle. Although Howard A. Scheid, salesman for Breimayer Chevrolet Sales Company, was a passenger in the vehicle at the *115time of the accident, any right of control which he might have had over the driving of Father Reits was a mere fiction, not recognizable in the State of Michigan. Sherman v. Korff, 353 Mich 387.” (Emphasis ours.)
Appellant did not file a reply brief, and the only statement that remotely refers to the question presented by appellee is the reference in its original brief to Parks v. Pere Marquette R. Co., 315 Mich 38, as follows:
“In Bricker v. Green, however, the Michigan Supreme Court, reversing prior decisions to the contrary, held that the negligence of the driver of a motor vehicle cannot be imputed to a passenger therein.
“This was followed by the case of Parks v. Pere Marquette R. Co., 315 Mich 38 (1946).- In that case, the passenger was also the sole owner of the vehicle. The Michigan Supreme Court held that, under such circumstances, the negligence of the driver would be imputed to the owner-passenger under the fictional theory that the owner was in control of the operation of the vehicle, there being no evidence to the contrary.” (Emphasis ours.)
In the Parks Case we held (quoting syllabi):
“The owner’s liability for negligence of another driving automobile while owner was a passenger is determinable under common-law principles applicable to master and servant and principal and agent relations.”
“At common law a servant’s negligence within the scope of his employment is imputable to master and bars latter’s recovery against third persons if servant’s negligence contributed to the injury.”
“One who owns a car and is present therein at time of accident is prima facie in control of its operation, the mere fact that he does not actually *116exercise control not warranting a finding of abandonment of right to control.”
There is no dispute in this case that Scheid was Breimayer’s agent and that the automobile was being demonstrated and being used in the furtherance of the dealer’s business.
Scheid allowed Father Reitz to drive, believing it to be the best way to demonstrate the qualities of the car and to make another sale for Breimayer. Under these conditions Breimayer’s rights and duties should be measured as though it was seated next to the prospective purchaser, Father Reitz, instead of its salesman and agent, Scheid.
The record in this case merely proves that the salesman allowed the prospective purchaser to drive the car without interfering with him as he drove. It also discloses that the accident would not have happened had the salesman not selected the gravel road upon which the intersection collision occurred.
There is a total absence of proof, nor is there even an intimation, that the salesman could not have at any time taken complete command of the car. In order for plaintiff to recover it would have to show that Breimayer’s agent did not have the right of control. This it failed to do.
The Michigan Supreme Court has not passed judgment upon facts such as are presented in this appeal, but several other State supreme courts have and the majority sustain appellee’s contention.
31 ALR2d 1445 establishes the principle in this way (pp 1449, 1450) :
“The second broad rule deducible from the decisions forming the body of this annotation is that in cases in which the negligent operation of a dealer’s car by a prospective purchaser or one acting for him has occurred while the dealer, or his representative, was present in the car, the dealer is liable for *117harm resulting from such negligence, since the operator is, in such a situation, the agent of the dealer. In one decision, the rule is stated as follows: When an owner of a car, desirous of effecting a sale, allows its operation by a prospective purchaser as an aid to effect such prospective sale, the operation of the car by the prospective purchaser is in furtherance of the dealer’s business, and the dealer’s continued presence in the car in a situation where he could instantly give instructions, if necessary, to the purchaser-driver, creates a relationship between the two in which the driver is the agent of the dealer, and his negligence is imputable to the dealer.”*
The Connecticut supreme court in Archambault v. Holmes, 125 Conn 167, 171 (4 A2d 420, 421), answered a question similar to that appellee presents to this Court as follows:
“However, to absolve the. seller from liability for the negligence of a prospective purchaser in operating a car while accompanied by an agent or employee of the seller, something more is necessary than the mere fact that the agent or employee failed to exercise control over that operation. In most of the cases we have cited or. referred to where the seller was held liable for the negligence of the purchaser, his agent was not in fact exercising any such control. The seller is absolved only where his agent has abandoned his right to control the operation of the car and surrendered that operation wholly to the *118purchaser. Sampson v. Aitchson, L.R. [1912] App Cas 844, 850; Greenie v. Nashua Buick Co., 85 NH 316 (158 A 817); Beaudoin v. W. F. Mahoney, Inc., 131 Me 118 (159 A 567). The principle is the same as that applied in determining whether one who does work for another is his employee or an independent contractor, where we have said: ‘The decisive test is who has the right to direct what shall be done and when and how it shall be done? Who has the right to the general control?’ Thompson v. Twiss, 90 Conn 444, 447 (97 A 328, 330, LRA1916E, 506); Francis v. Franklin Cafeteria, Inc., 123 Conn 320, 324 (195 A 198).
“The finding of the court in this case goes no farther than to state that the seller’s agent did not actually exercise any control over the car while Martin was driving it. It does not state that the seller’s agent had surrendered to Martin the right to control its operation. The finding was not a sufficient basis for a conclusion that Martin was not operating the car in the place and stead of Poster, the plaintiff’s agent, and for holding that Martin’s negligence would not be imputed to the plaintiff as his principal.”
Other States with similar motor vehicle ownership statutes as Michigan have recognized the necessity and advisability of differentiating between general ownership and automobile dealer ownership —sales representative and prospective purchaser— facts such as are involved in this appeal, and I believe Michigan should do likewise.
I am not writing on the issue as to whether the court did or did not err in construing the Michigan motor vehicle ownership liability statute (appellant’s question) because I believe that with the large number of Michigan automobile dealers, salesmen, and prospective purchasers, it is imperative in deciding this case, and future cases, that we decide *119same under appellee’s common-law question rather than under appellant’s statutory question.
“Where the trial judge reaches the right conclusion in deciding the case, we do not disturb the result attained even though other reasons should have been assigned.” McNair v. State Highway Department, 305 Mich 181, 188.
Judgment should be affirmed. Costs to appellee.
Dethmers, J., concurred with Kelly, J.Sueh rule of law has been applied in the following cases: Robbins v. Greene, 43 Wash 2d 315 (261 P2d 83); Wilhelmi v. Berns, 274 Ky 618 (119 SW2d 625); Downtown Chevrolet Co. v. Braune, 181 Okla 134 (72 P2d 842); Dahnke v. Meggitt, 63 Ohio App 252 (26 NE2d 223); Wooding v. Thom, 148 App Div 21 (132 NYS 50, 103 NE 1135); Doyon v. Massoline Motor Car Co., 98 NJL 540 (120 A 204); Lott v. Grant, 198 Wis 291 (223 NW 846); Beaudoin v. W. F. Mahaney, Inc., 131 Me 118 (159 A 567); Archambault v. Holmes, 125 Conn 167 (4 A2d 420); Briggs v. Jess Mead, Inc., 93 Cal App 666 (270 P 263); Cook v. Connelly Chevrolet Co., 261 Ill App 242. See, also, 60 CJS, Motor Vehicles, § 436, pp 1091, 1092; 5A Am Jur, Automobiles and Highway Traffic, § 568) pp 580-582, and 8 Am Jur 2d, Automobiles and Highway Traffic, § 581, pp 135, 136.