It is undisputed that plaintiff was struck by defendant’s automobile while being run or operated by defendant’s chauffeur. The defendant testifies that the chauffeur was acting without his authority and against his express command. The chauffeur was not produced at the trial? his absence, however, being explained. There is evidence that the defendant failed to deny the authority of the chauffeur when served with the summons and complaint.
The court charged the jury that the failure of the defendant at the time he was served with the summons and complaint to deny that the chauffeur was acting at the time of the accident as the employee of the defendant and in the performance of duties for the defendant, “ may be considered as *681proof that the agent had authority,” to which exception was taken.
In so charging the jury, the court committed error prejudicial to the defendant.
Present: Gildebsleeve, Guy and Bbuge, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.