
    No. 447
    LAUB BAKING CO. v. MIDDLETON
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6250.
    Decided April 5, 1926
    923. PLEADING — In a negligence case (829) where one is injured by the negligent operation of motor vehicle, the actual agency (54) and scope of an employee must be proven by the plaintiff and it is not sufficient to prove bare ownership of the vehicle which caused the injury.
    Attorneys — Dustn, McKeehan, Merrick, After and Stewart for Laub Baking Co. and Mooney, McCormick, Roth and Pollack for Middleton; all of Cleveland.
    Mauck, P. J., Sayre and Middleton, JJ., of the fourth district, sitting.
   MAUCK, P. J.

Katherine Middleton was injured by the negligent operation of a motor truck, the real issue being whether the Baking Company is liable for the negligent operation of the truck. In order for Middleton to sustain her case it is necessary for her to establish 'two further facts. 1. That the driver of the motor truck was the agent of the Baking Company; 2. That such driver at the time of the injury was acting within the scope of his employment. From evidence introduced at the trial below Middleton introduced evidence only to show ownership of the truck. The Court of Appeals held:

1. It is not necessary to prove ownership, for liability rests not on the ownership but upon the agency of the actual tort-feasor.
2. Proof of ownership of a vehicle is only admissible as giving rise to an inference that the driver was the agent of the owner.
3. As one inference cannot be predicated upon another inference; it follows that Middleton did not make a case and for these reasons the judgment will be reversed.  