Opinion by

The plaintiff was injured by a team of horses which ran away because of the negligence of their driver. It was undisputed that the horses and the wagon to which they were harnessed belonged to an Italian engaged in the grocery business, and the driver was employed and paid by him. The horses were at times used to a delivery wagon in which beer was carried from the defendant’s brewery to the grocer’s store and to his customers and in which the empty bottles were returned to the brewery. This wagon had at one time belonged to the defendant, and the initials of the company’s name and the number of its license were painted on its side. At the time of the accident it was loaded with boxes of bottles that belonged to the defendant.

The only testimony in the case that tended in any way to fix a liability on the defendant was that of the grocer who said in his examination in chief that he worked for the brewing company as agent, and that his earnings depended upon the amount of beer sold. The testimony of this witness was guarded, his answers as to his selling beer were evasive, and his anxiety not to make disclosures that would subject him to a prosecution for selling liquor without a license was manifest. But in his cross-examination his relations with the brewing company were fully disclosed. It appeared that he purchased beer for the purpose of selling it to his customers, and paid for it at the rate of one *43dollar a box. On the return of a box with the empty bottles thirty cents was repaid to him, or if he obtained the beer on credit, as was sometimes the case, he was allowed the rebate on settlement. This method of securing the return of empty boxes and bottles was followed whenever a sale of beer was made, and he was treated in the same manner as other purchasers. The only relation between the brewing company and him was that of seller and buyer, and his horses and wagon were used and his driver employed solely in the prosecution of his own business. If there had been a doubt as to this, the case should have been submitted to the jury, but there was none. This testimony was that of the- plaintiff’s own witness, and it was the only evidence relied on to establish agency or employment. The fact that he called himself an agent and spoke of his profits as earnings was unimportant, in view of the disclosure of the real character of his business. The testimony may have indicated that he was selling beer in violation of law, and because of his use of a delivery wagon on which were the defendant’s initial and license number it may have given rise to a suspicion that he was doing this with the knowledge and connivance of the officers of the brewing company. He had obtained two old wagons of the company, one by purchase, which he afterwards sold, and one by gift. The ownership of the wagon in use at the time of the accident was clearly shown to be in him. But the issue on trial was not whether there had been a violation of the liquor law, but whether the driver of the wagon was the servant of the defendant or engaged in the prosecution of its business. In support of this there was not sufficient evidence to warrant the submission of the case to the jury.'

The judgment is reversed and judgment is now entered for the defendant.