(concurring specially).
I concur in the majority opinion with respect to the motion to dismiss the appeal and in the result as to the motion to quash the service. The affidavit of the defendant Kilpatrick establishes that he was an employee of the codefendant Shir-riff’s Limited and that the automobile he was driving at the time of the accident was owned by his codefendant. From these facts an inference may be drawn that he was acting as agent for his code-fendant at the time of the accident. 61 C.J.S., Motor Vehicles, § 526, page 507. See also Carlson v. Hoff, 59 N.D. 393, 230 N.W. 294; Clark v. Feldman, 57 N.D. 741, 224 N.W. 167; Hedine v. Meyer, 57 N.D. 908, 224 N.W. 906.
Where it appears that an accident occurred while an automobile was being driven by a person who was in the employment of the owner, a rebuttable presumption arises that at the time of the accident the driver was acting within the scope of his employment. Langston v. Harper, 216 Ark. 778, 227 S.W.2d 973; Nash v. Wright, 82 Cal.App.2d 467, 186 P.2d 686; Hix-Green Co. v. Dowis, 79 Ga.App. 412, 53 S.E.2d 601; Higgans v. Deskins, Ky., 263 S.W.2d 108; Wagner v. Emmett, Ky., 280 S.W.2d 210; Culver v. Toye Bros. Yellow Cab Co., La.App., 26 So.2d 296; Witthauer v. Employers Mutual Casualty Co., 149 Neb. 728, 32 N.W.2d 413; Pollard v. Grimes, 202 Okl. 118, 210 P.2d 778; Delaney v. Turner, 34 Tenn.App. 380, 237 S.W.2d 965; Poe Motor Co. v. Martin, Tex.Civ.App., 201 S.W.2d 102; Hudiburgh v. Palvic, Tex.Civ.App., 274 S.W.2d 94; McNeill v. Spindler, 191 Va. 685, 62 S.E.2d 13.
The affidavit also contains statements to the effect that at the time of the accident Kilpatrick was on a vacation trip, was not acting within the scope of his employment, and that to the best of his knowledge his codefendant is not engaged in business in the State of North Dakota. Thus it states facts supporting an inference of agency and also facts which tend to rebut that inference. The affidavit constitutes the entire showing made in support of the motion to quash the service on Shirriff’s Limited. It discloses that there is a disputed question of agency to be determined. It cannot be said to establish that no agency existed and that the court therefore had no jurisdiction. The showing is insufficient to support a motion to quash the service 'as to Shirriff’s Limited for lack of valid service of process which the record on its face shows to have been made pursuant to Section 28-0611 NDRC 1953 Supp. Under the facts here presented it is proper that the question of agency be determined at a trial on the merits rather than on a challenge to the jurisdiction of the court raised on a preliminary motion. I concur in the reversal of the order of the trial court.