Statement of the Case. 2. The facts that the automobile was owned by the defendant and that the same was negligently operated by an employe do not make a prima facie case of negligence against the owner, unless it appears that the employe was driving the automobile with authority, express or implied, of the owner. 3. A bookkeeper or cashier, employed in the office of the company, is not presumed from that fact alone, to have the implied authority to use or operate an automobile purchased and owned by the company for the use and purpose of a traveling salesman. (No. 13602-Decided May 6, 1913.) ERROR to the Circuit Court of Hamilton county. This is an action to recover damages for the death of Paul Francis Rivoux, alleged to have been caused by the negligence of The White Oak Coal Company. Rivoux, while standing near the curb on the sidewalk on the south side of Fourth street, west of and near Sycamore street, in the city of Cincinnati, was knocked down and injured by an automobile, and died as a result of the injuries. At the time the injuries were received, The White Oak Coal Company was a corporation organized under the laws of the state of West Virginia, and authorized to do business in the state of Ohio. It maintained an office and coal yards in the city of Cincinnati, and this branch of the business was in charge of one William F. Smith, known as the general sales manager of the company. The action was begun in the superior court of Cincinnati, and the administratrix of the decedent, in her petition, alleged that the automobile was owned by The White Oak Coal Company, and Statement of the Case. that, at the time the injuries were received by the decedent, it was operated by one Charles A. Tribbey, as its employe. She alleged that the company was negligent in allowing Tribbey, who, it was alleged, was incompetent, to operate the automobile; that the same was not properly constructed and equipped; that Tribbey negligently operated it and at an improper rate of speed, and that he failed to keep the automobile at a proper distance from the curb and sidewalk and failed to stop it before it struck decedent, and, in her amendment to the petition, claimed that the company was negligent also in failing to have the tires of the automobile so constructed, covered and protected as to prevent the skidding or slipping of them. Defendant admitted its corporate existence and authority to do business in Ohio, and denied each and every other allegation contained in the petition and amendment thereto. The cause was submitted to a jury, and there was evidence introduced by plaintiff establishing the fact that Rivoux was knocked down and injured by the automobile; that he died from the injuries received; that plaintiff was the administratrix of decedent; that he left surviving him a widow and children who would have received pecuniary benefit and assistance from him if he had lived; that the automobile in question was owned by The White Oak Coal Company, having been purchased by it for the use of a traveling salesman; that this salesman had entire charge of the storage in the garage and the repairs; that Tribbey was operating the car at the time of the Statement of the Case. accident and that he was an employe of the company, being employed in the office as bookkeeper or general office clerk. There was no direct evidence offered by plaintiff tending to prove that Tribbey, at the time he was operating the automobile, was using it for any purpose connected with the business of the company, or that he was using the same with the company's knowledge, permission or consent. Plaintiff introduced evidence tending to show that Tribbey was negligent in the operation of the car in the particulars mentioned in the petition. At the close of plaintiff's evidence, a motion to arrest the cause from the jury and to direct a verdict for the defendant was made and overruled. On behalf of defendant, William F. Smith, the general sales manager of the company, who had control and management of the Cincinnati branch and who employed Tribbey, testified that he (Tribbey) was employed as bookkeeper and cashier; that his duties were to keep the books, take off balances, render bills and take care of the office, and that his duties were absolutely in the office. On cross-examination, Smith admitted that, in his deposition given in the case, he stated that Tribbey had full charge of the office in his (Smith's) absence. Samuel Dickson, the general manager of the company, testified that Tribbey was cashier and bookkeeper and had no duties to perform outside of the office of the company. Statement of the Case. Tribbey testified that he had intended to use the automobile in the afternoon of the day of the accident on personal business; that he was to drive to Norwood to confer with a man on personal business relating to a lodge of which he was a member; that on the morning of that day he had the automobile brought to the office of the company by an employe of the garage where it was kept; that he was driving the automobile for the purpose of ascertaining whether it needed any repairs before undertaking the trip in the afternoon-the automobile having come in the day before from a several days' trip through Indiana -and that, while driving for that purpose, the automobile skidded and ran into and injured Rivoux. Tribbey admitted that, without permission from the company, he had used the automobile on several occasions prior to this day-on Sundays and on evenings during the week after business hours-for his own pleasure and not in connection with any business of the company. He admitted that, when the manager of the company was not in the office and persons would call and ask for the manager in connection with matters he (Tribbey) felt able to handle, he had stated that he was assistant manager. It appears from the evidence that Smith was in the city on the day of the accident. At the close of all the evidence in the case, counsel for The White Oak Coal Company renewed its motion to arrest the cause from the jury and for a verdict in its favor, which motion was overruled. A verdict was rendered for plaintiff, a motion for a new trial was presented and Argument for Defendant in Error. overruled and judgment rendered on the verdict. Error was prosecuted to the circuit court, and that court affirmed the judgment of the superior court. This proceeding here is to reverse the judgments of the lower courts. Messrs. Peck, Shaffer & Peck, for plaintiff in error. Our proposition is that at the time of the accident Mr. Tribbey was not acting within the scope of his employment and therefore the plaintiff in error was not liable. Lima Ry. Co. v. Little, 67 Ohio St., 91; Limpus v. London Gen. Omnibus Co., 1 H. & C., 542, 32 L. J. Ex., 34, 9 Jur. N. S., 333, 7 L. T., 641; Brown v. Jarvis Engineering Co., 166 Mass., 75; Daniel v. Railroad Co., 136 N. Car., 517; Bard v. Yohn, 26 Pa. St., 482; Way v. Powers, 57 Vt., 135; McCarthy v. Timmins, 178 Mass., 378; Fiske v. Enders, 73 Conn., 338; Reaume v. Newcomb, 124 Mich., 137; Fish v. Coolidge, 47 App. Div., 159; Cavanaugh v. Dinsmore, 12 Hun, 465; Thorp v. Minor, 109 N. Car., 152; Storey v. Ashton, L. R., 4 Q. B., 476; Clark v. Buckmobile Co., 107 App. Div., 120; Stewart v. Baruch, 103 App. Div., 577; Branch v. I. & G. N. Ry. Co., 92 Tex., 288; Carl Corper Brew. & Malt. Co. v. Huggins, 96 Ill. App., 144; Cunningham v. Castle, 127 App. Div., 580. Messrs. Horstman & Horstman, for defendant in error. The following are some of the cases as to liability of an employer for the act of a servant |