Opinion of the Court. in the course of his employment, and as to presumptions and burden of proof in such cases. Norris v. Kohler, 41 N. Y., 42; 1 Shearman & Redfield on Negligence (5 ed.), Sec. 158; Edgeworth v. Wood, 58 N. J. L., 463; Maccoun v. N. Y. C. & H. R. Rd. Co., 66 Barb., 338; Cunningham v. Castle, 127 App. Div., 580; 1 Thompson on Negligence, Secs. 613, 614, 615, 616; Schulte v. Holliday, 54 Mich., 73; Stewart v. Baruch, 103 App. Div., 577; P. C. C. & St. L. Ry. Co. v. Shields, 47 Ohio St., 387; Hayes v. Wilkins, 194 Mass., 223; Shamp v. Lambert, 142 Mo. App., 567; Robards v. P. Bannon Sewer Pipe Co., 130 Ky., 380; Brennan v. Merchant & Co., 205 Pa. St., 258; Kelton v. Fifer, 26 Pa. Super. Ct., 603; 2 Thompson on Negligence (1880), 899; Deck v. B. & O. Rd. Co., 100 Md., 168; Rahn v. Singer Mfg. Co., 26 Fed. Rep., 912, 132 U. S., 518; Mulvehill v. Bates, 31 Minn., 364; Carl Corper Brew. & Malt. Co. v. Huggins, 96 Ill. App., 144; Hershinger v. Pa. Rd. Co., 25 Pa. Super. Ct., 147; So. Ohio Rd. Co. v. Morey, 47 Ohio St., 211; Barnes v. Kirk Bros. Auto. Co., 13 C. C., N. S., 571. NEWMAN, J. The liability of The White Oak Coal Company is based upon the wrongful and negligent acts of its servant. The company, however, is not liable unless the acts complained of were committed while the servant was acting within the scope of his employment. This is the test and the authorities agree upon this principle. Lima Ry. Co. v. Little, 67 Ohio St., 91. Opinion of the Court. The company, therefore, is not answerable in damages unless Tribbey, who was operating the automobile at the time of the accident, was acting for the company and in the prosecution of its business. It is averred in the petition that he was operating the automobile as an employe of the This was an essential and material All the other material averments of the cause of action were concededly established. The sole claim of plaintiff in error is that Tribbey was not acting within the scope of his employment. It was incumbent upon the plaintiff below to establish, by a preponderance of the evidence, that he was acting within the scope of his employ company. averment. ment. Defendant in error does not question the rule we have announced as to the test of liability, but insists that the question whether or not Tribbey was acting within the scope of his employment was one of fact properly left to the determination of the jury, and that there was evidence tending to establish this fact. The circuit court, in affirming the judgment of the trial court, say: "The plaintiff below, having shown that the automobile was the property of the defendant and that Tribbey, the driver, was in defendant's employ, the burden was then placed upon defendant to show that, at the time of the accident, Tribbey was acting outside the scope of his employment in a personal enterprise." Assuming that such a presumption did arise, the "burden," so called, would not require defendant to do more than introduce evidence sufficient to countervail this presumption-it was not Opinion of the Court. Klunk required to overbalance or outweigh it. But did such a presumption arise from the facts established by plaintiff below? The ownership of the automobile was established, and it was shown that Tribbey was operating the same at the time of the accident and that he was an employe of the company. Is it to be inferred from these facts that Tribbey was acting within the scope of his employment? It was conceded that he was an employe, but was there any evidence offered by plaintiff tending to prove that he was an employe or servant employed in connection with the particular instrument which caused the death of the decedent? Not only was there no evidence in support of such a claim, but on the contrary it appears from the testimony of plaintiff's own witnesses that Tribbey was a cashier or bookkeeper in the office of the company, and that the care, storage and repairs of the automobile were under the control of another employe-a traveling salesman, for whose sole use and purposes the same had been purchased. Further, there was no evidence offered, on the part of plaintiff, tending to prove that Tribbey was operating the automobile, at the time of the accident, with the knowledge, consent or authority of the company, or that he had ever so operated it. In addition to the cases cited by defendant in error, we have examined and considered a number of other "automobile cases," and we find that in these cases, at the time of the accident, the automobile was in charge of a servant of the owner Opinion of the Court. a chauffeur in most instances-whose duty it was to operate the automobile, and who was rightly in the possession and use of the same with the consent, knowledge and authority of the owner. In these cases the courts do hold that the establishment of these facts raises the presumption or inference that the person so in charge was acting within the scope of his employment, and it then becomes a question for the jury to determine, upon all the evidence in the case, whether or not this presumption has been overcome. In the recently decided case of Reynolds v. Denholm, 213 Mass., 576, decided February 25, 1913, to which our attention has been called by counsel for defendant in error since the submission of the case at bar, it was admitted that the defendant owned the automobile, and that, at the time of the accident, it was being operated by a chauffeur who was in the defendant's employ. It further appeared that there was evidence tending to show that the chauffeur was employed to drive the automobile for the defendant's family whenever they wanted to use it; that he slept in the house occupied by the defendant and his family, but took his meals at another place, and had his laundry done at still another place; that both his laundry and meals were paid for by defendant as part of his wages; that he was allowed or suffered by the family, without objection, to use the automobile to go to his meals and to get his laundry as he found it convenient, and, while going for his laundry in the automobile, he ran into and injured the plaintiff. Opinion of the Court. In that case, the trial court, at the close of all the evidence, directed a verdict for the defendant. The supreme court of Massachusetts held that there was. error in this, and that whether the driver was acting within the scope of his employment at the time of the accident was a question for the jury. The case at bar presents an entirely different state of facts, and is clearly distinguishable from the Reynolds case. In Cunningham v. Castle, 127 App. Div., 580, the trial court charged that the fact that the automobile, at the time of the accident, was in the possession of and driven by the chauffeur, with the owner's permission, placed upon the owner the same degree of liability for the chauffeur's negligence, if any, as would have been imposed upon him if the chauffeur were then engaged in the personal business of the defendant. The reviewing court held that this charge was erroneous and that a question of fact was presented upon the evidence, which was whether the chauffeur, at the time of the injuries complained of, was acting within the scope of his employment. But, in that case, it was established that the automobile, at the time of the accident, was being operated by the chauffeur with the knowledge and permission of the owner; in Stewart v. Baruch, 103 App. Div., 577, it appeared that the defendant was the owner of the automobile and that the chauffeur who was operating it was in his employ; in Cooper v. Knight, 147 S. W. Rep., 349 (Texas), the operator of the automobile was employed by the defendant, and his duties were to go after and deliver automobiles, and, at the time |