dissenting:
The very lengthy opinion of the majority succeeds in making a very plausible argument as to what the law ought to be, but in my opinion falls short of overcoming the pronouncement of the Supreme Court of Ohio as to what the law is. Under the facts in the instant case the principle announced in the case of Sobolovitz v The Lubric Oil Company, 107 Oh St 204, is controlling. In the majority opinion it is sought to distinguish the Lubric Oil Company-case, supra, on the factual question that in the instant case the truck involved was loaded with scrap iron, and since it was the defendant company’s business to handle scrap iron, that an inference might properly arise that the truck was being driven by an employee and that such employee at the time was operating the truck in the course of his master’s business.
This argument is completely answered in the Lubric Oil Company case, supra. In the latter case the claim was made that the circumstances would warrant the inference that the truck was delivering company’s products at the time of the accident. The vice president of the defendant company gave testimony that at the time Of the accident the defendant owned a number of oil trucks which bore the name “The Lubric Oil Company”; that when the trucks were not in use they were kept upon the company’s premises, and that so far as he knew the drivers of the trucks were not permitted to drive the trucks home with them; and that on some Sundays some of the trucks were operated in furtherance of the business of the company and on some Sundays none were so operated. (The accident occurred on a Sunday.) The oil truck had painted on its side the name “Lubric Oil” and the Supreme Court determined that this legend would warrant the inference that the defendant company was the owner of such truck. Just as in the case at bar there was no evidence that the driver of the oil truck was an employee of the defendant company. In each instance it sought to raise the inference that the truck was being operated by a servant of the company on company business. In the Lubric Oil Company case the Supreme Court makes the statement that' while the legend on the side of the truck might raise the inference of ownership, yet it would be improper to indulge the further inference on the inference of ownership, that the truck was being operated by company servants in the interest of company business.
*355The Supreme Court might just as readily have said that proof of ownership, whether through inference or by direct testimony, would not give rise to any inference that the motor vehicle was being operated by an employe acting upon his employer’s business and was within the scope of his employment-. The Supreme Court has very positively and directly so held in the case of the White Oak Coal Company v Rivoux, Admr., 88 Oh St 18.
' If mere proof of ownership is not (rufficient to raise any inference, it becomes unimportant as to how the ownership is shown. In the case at bar counsel for the defendant during the progress of the trial admitted ownership and thus removed this as an issuable question. However, it still remains the duty of the plaintiff to prove that the motor vehicle was being operated by a servant of the defendant company, and that such servant was at the time engaged upon his employer’s business and acting within the scope of his employment. The fact that the truck was loaded with scrap iron which was a product generally handled by the defendant company is not an adequate circumstance to change this principle of law.
The case of Hozian, an infant, etc. v Casting Co., 132 Oh St 453, is not in point, and the court in the first syllabus as well as in the opinion very closely distinguishes the holding in that case from the principles announced in the White Oak Coal Company case, 88 Oh St, supra, and the Lubric Oil Company case, 107 Oh St, supra. When the Supreme Court says it distinguishes the case being considered from earlier' reported cases, it never means that the cases referred to are in any sense modified. It means nothing more than that the case being considered has distinguishing facts.
The case of Rosenberg v Reynolds, 11 Oh Ap 66, referred to in the majority opinion can not be given application in the instant case because of the divergence on a very material factual question. In the reported case the Court of Appeals says that “where the evidence discloses that at the time of the injury the automobile was the property of defendant and was being operated by his chauffeur, an inference arises”, etc. In the instant case there is a failure to present competent evidence that the driver of the defendant’s truck was an employe, and engaged in his master’s business.
In my judgment the Common Pleas Court was right when he determined that the record failed to present any evidence from which it might be determined that the defendant company at the time of the accident was operating its truck through a duly authorized agent.
It is my conclusion that the finding and judgment of the Common Pleas Court should be affirmed.
MOTION TO CERTIFY CASE
No 3280.
Decided Jan 9, 1941
BY THE COURT:This matter is again before this Court upon a motion of appellee to certify the case- to the Supreme Court on the ground of conflict.
This Court has had occasion to examine the constitutional provisions, that must be met before a Court of Appeals is authorized to certify a case to the Supreme Court on the ground that they have found “that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other Court of Appeals of the state.”
This case has received the careful attention of this Court. The two concurring judges have each rendered an opinion on which the facts are stated and the ground of the conclusion arrived at. The dissenting judge has likewise stated clearly the ground for his dissent. We, therefore, feel that it is not incumbent upon us to again recite the facts or to restate the principles upon which the case was decided. They appear clearly in the opinion. *356Counsel for appellee has thus stated the matter:
“The legal principle upon which this court has announced (its opinion) may be thus stated: that the proof of ownership of a truck plus the fact that the truck was at the time loaded with a commodity incidental to the defendant’s business is all that is necessary to make a prima facie case against the defendant on the question of agency.”
We think that this is not a complete statement of the proposition upon which the Court rendered its judgment. The reasons are given at large, both by the prevailing members of the Court and discussed by the dissenting member, and it would be idle to again restate them.
The question now before the Court is whether this Court can now find “that a judgment upon which they have agreed is m conflict with a judgment pronounced upon the same question by any other Court of Appeals in the state”.
Counsel has cited a number of cases which they claim gives rise to the conflict. We have carefully examined all of these and find that a number are not only upon the same question, but in as far as they do involve the same question, are in support of, rather than in conflict with, the decision of this Court.
Zarn, Admr. v Dominique, 69 Oh Ap 442. It is there held that the master is liable for the servant’s act only if the act was done in the service of and while the servant was acting for the master in the master’s business, and that the employer was not liable for an accident occurring while the employee was proceeding to the place of employment, but before he had arrived at such point. This, of course, is a correct decision, but so far as we can detect has no similarity to the case at bar.
Self Advertising Company v Gitter, 16 Abs 696, so far as it relates to agency, holds that the inference that the driver involved in an accident for which the owner is sued was in the prosecution of the business of the defendant who admitted that he owned the truck; that it was regularly used in the prosecution of the business; that the driver was a regular employee and was in that employment on the day of the accident, and other facts stated in syllabus 3, is so strong and compelling as to make it necessary for the defendant to have the driver testify that he was not at that time in prosecution of the defendant’s business. The facts establishing the agency in this case are stronger than in the case at bar, but there is no conflict because the same questions are not involved and the opinion supports rather than conflicts with that in the instant case.
Lytle v Union Gas & Electric Company, 24 Oh Ap 314. There is no similarity in the questions decided by the court with those involved in this case. The Court there correctly holds:
“To render the master liable for negligence of a servant, servant must, at the time of negligence complained of, be in the service of and attending master’s business and acting within the scope of his authority.”
That is a correct statement of the law, but does not involve the question here at issue as to inference that may be properly drawn from proved facts.
Smith v Lightfritz, 22 Abs 181, involved an accident to a guest riding in an automobile where the driver was negligent, and the court there holds that in an action against the owner for injuries resulting from negligence of his driver, established facts that the truck belonged to the owner; that at the time of the accident it was in the custody of his driver and was loaded with freight being transported in furtherance of the owner’s contract, raises an inference or presumption that such driver was using the truck in the course of employment by his owner and “in the absence of evidence to the contrary the refusal to direct a verdict for the defendant is not error.” It is conceded that the established facts in *357that case are stronger in favor of the plaintiff than they are in the case at bar, inasmuch as they proved that at the time of the accident the truck was in custody of his driver, which is the important question here, this Court holding that from the facts proved such an inference could be drawn.
Schmidt v Schwab, 17 Oh Ap 127. It is there held that in an action for damages alleged to be caused by being ^struck by the automobile truck of defendants where the evidence establishes ■'.hat at the time of the accident the truck was in charge of a servant whose ■duty it was to operate and who was regularly in the possession and use of the same with the consent of the owner, the presumption arises that the servant at the time was acting within the scope of his authority. This again is a stronger case as to the racts proven than the case at bar, but m so far as the question is involved it is not in conflict with but in support of the position of this Court.
Fach v Yellow Cab Co., 36 Oh Ap 217. It is there held that where a chauffeur is engaged in the operation of his employer’s car, which the chauffeur was employed to operate, a presumption arises, in the absence of evidence to the contrary that the chauffeur was at the time acting within the scope of his authority and was engaged in his employer’s business. That again presents a stronger case of evidence than the case at bar for the reason that it appears that the chauffeur engaged in the operation of the car was employed to so operate it. But there is no conflict.
Counsel seems to rely upon the authority of those cases which hold that an inference may not be based upon an inference. This Court has not held that such can be done, but does advance the position that from the facts proven, two different and necessary inferences, not in conflict, may be drawn from the facts proven.
The one case that seems to have some basis for counsel’s claim that there is conflict is the case of,
Rasp v Ohio Stutz Company, 7 Abs 151. The Court states that the evidence in the case tending to show any business connection between the parties was limited to the testimony of one witness, the vice president of the defendant, who denied any connection whatever with the driver of the company’s machine. Middleton, PJ., delivering the opinion of the Court states that the most that may be claimed from the testimony and the fact that at the time of the collision Black was driving a machine of the defendant, is that by inference the jury might have found that Black was an agent or employee of the company, “but to entitle the plaintiff to a recovery it must further appear that Black at the time was engaged in his employer’s business within the scope of his employment and driving his employer’s machine with its authority, express or implied.” Citing the Rivoúx case, and stating in addition,
“These additional facts necessary to be established may only be inferred from the fact the Black was the agent or employee of the company. This can not be done for the reason that one inference may not be predicated on another inference.”
As we have frequently stated, the necessary facts establishing the liability of the defendant are not established by basing one inference upon another, which is forbidden, but that all inferences necessary to establish the liability may be drawn from the facts proved.
The trial of the case is not limited to a single inference. There may be many such, but each inference must be based upon appropriate facts proved and may not be based upon another inference.
The judgment in the instant case is not in conflict with the judgment in any of the cases cited. We hope the matter may reach the Supreme Court in spite of our refusal to certify a conflict.
*358Application to certify the case on the ground of conflict denied.
Entry may be prepared accordingly.
HORNBECK, PJ. & GEIGER, J., concur. BARNES, J., dissents.