
    LEVIS et v McGERTY
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided March 31, 1930
    .Corn & Jenkins, Ironton and James Collier, Ironton, for Levis et.
    A. R. Johnson, Ironton, for McGerty.
   MAUCK, J.

The plaintiff in error here complains of some errors in the admission of evidence but we find nothing substantial in this complaint.

Before argument at the instance of the defendant certain instructions were given to the effect that the defendant was not liable for the negligence of the driver of the truck unless the driver was at the time of the collision the agent of the defendant and operating ■ the truck in the scope of his employment. This charge was sound. The rule is thus expressed in Higbee v. Jackson, 101 Ohio St., 75, 95:

During the argument of the case the court withdrew this special charge over the defendants’ objection. The trial court in taking from the jury the quite proper instructions theretofore given was of the impression that the defenadnts had admitted in their pleading that the driver was their agent and was at the time of the collision operating within the scope' of his employment. This was an erroneous interpretation of the pleadings. The defendants had by answer admitted ownership of the truck and by cross petition had asserted the- 'agency of the driver. They nowhere by pleading or testimony admitted that the driver was within the scope of his employment when the collision occurred, and whether he was or hot was a question for the jury.-

In taking from the jury the special instructions given before argument the trial court erred to the prejudice of the defendants and for that reason the judgment must be reversed.

Middleton, PJ and Blosser, J concur.  