delivering the opinion of the court.
It was admitted at the beginning of this case that the defendant was the owner of the automobile in question, and it has been shown that a party named Hutchins was driving it at the time of the accident.
The contention is that the ownership being admitted, Hutchins was prima facie the agent or employee of the owner. Conceding this, yet it is incumbent upon the plaintiff to show that the driver was, at the time of the accident, acting for the defendant in due course of the latter’s employment, and we do not think that the latter can be presumed, but must be shown by affirmative evidence.
The nonsuit moved for is therefore granted.
Thereupon, a motion was made under rule of court to take off the nonsuit. The motion coming on to be heard, counsel for the plaintiff contended, in substance, that the admission that the defendant owned the automobile at the time of the accident was prima facie evidence of the agency of the driver, and that the driver was acting within the scope of his employment; that the question was one easily confused with the question of what is necessary to be established in the minds of the jury in order to *405find a verdict for the plaintiff; that the question now before the court is distinctly what evidence is sufficient to establish the agency of the driver for the purpose of allowing the case to go to the jury; and it was insisted that the admitted ownership of the automobile by the defendant at the time of the accident is ample evidence of the agency of the driver of the car to permit the case to go to the jury. Ludberg v. Barghoorn, 73 Wash. 476, 131 Pac. 1165; Hays v. Hogan, 180 Mo. App. 237, 165 S. W. 1125; Norris v. Kohler, 41 N. Y. 42; Edgeworth v. Wood, 58 N. J. Law, 463, 33 Atl. 940; Seaman v. Koehler, 122 N. Y. 646, 25 N. E. 353; Svenson v. Steamship Co., 57 N. Y. 108; Railway Co. v. Callaghan, 157 Ill. 406, 41 N. E. 909; White v. People’s Railway Co., 6 Penn. 476, 72 Atl. 1059; Hansell v. Levy, 5 Houst. 407.
Counsel for the defendant contended in substance that it was incumbent upon the plaintiff to establish the existence of the relation of master and servant, or agency between owner and driver, as alleged in her declaration; that there was no evidence that Hutchins, the driver, was ever seen operating the defendant’s automobile before the time of the accident, or that he was ever known to act for the defendant in the capacity of his servant or agent; that it was part of the plaintiff’s case to prove that the driver was the servant of the defendant at the time of the accident; that it was necessary for the plaintiff to show not only the ownership of the car, which is admitted in this case, but that the person driving it at the time of the accident was the defendant’s servant, and that the latter was at the time engaged in the master’s business, with the knowledge and direction of the master. Hannigan v. Wright, 5 Penn. 540, 63 Atl. 234; Huddy on Automobiles, § 283, p. 308 (3d Ed.); Shearman & Redfield on Neg. § 144 (6th Ed.); Brohl v. Lingeman, 41 Mich. 711, 3 N. W. 199; Cavanagh v. Dinmore, 12 Hun. (N. Y.) 468; King v. N. Y. C. & H. R. R. Co., 66 N. Y. 184, 23 Am. Rep. 37; Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338.
Conrad, J.,delivering the opinion of the court.
[1, 2] The contention of counsel for the motion is to the effect that the admission of the defendant that he was the owner *406of the automobile, together with the testimony that one Hutchins was driving it at the time of the accident, establish prima facie that the driver was the servant of the defendant, and acting within the scope of the latter’s employment.
It seems to the court that the evidence was not sufficient to warrant the jury in finding that at the time of the accident the automobile was in charge of the defendant’s servant or that the driver was acting within the scope of the defendant’s employment. There must be some affirmative evidence of the relation of master and servant, and that the servant was acting within the scope of his master’s employment at the time of the injury complained of before there can be recovery.
It seems to us that the mere presumption of such relation and such service from the proof or admission of the ownership of the car, unsupported by other evidence, is insufficient to warrant a verdict against the owner thereof.
In reaching this conclusion we feel that the court now sitting is following the practice that has heretofore obtained in the courts: of this state, and we regret that a writ of error cannot be taken in this case.