The conviction is for a violation of what is known as the Motor Carrier Act, which appears as Art. 911b of Vernon's Annotated Civil Statutes, and Art. 1690b of Vernon's Penal Code; the punishment is assessed at a fine of $110.00. *Page 89
The specific charge against appellant was, in effect, that he was a motor carrier, within the meaning of the Act and, as such, did operate a motor vehicle over the highways of this State "without there being displayed and firmly fixed upon the front and rear of said vehicle an identification plate furnished by The Railroad Commission of Texas so as to identify the said vehicle as being a vehicle authorized to so operate."
The sole question presented for review is the sufficiency of the evidence to support the conviction, it being insisted that the uncontradicted testimony fails to show that appellant was a motor carrier.
Art. 911b, Sec. 1 (g) defines the term "motor carrier" as follows:
"The term 'motor carrier' means any person, firm, corporation, company, co-partnership, association or joint stock association, and their lessees, receivers or trustees appointed by any Court whatsoever owning, controlling, managing, operating or causing to be operated any motor-propelled vehicle used in transporting property for compensation or hire over any public highway in this State, where in the course of such transportation a highway between two or more incorporated cities, towns or villages is traversed; provided, that the term 'motor carrier' as used in this Act shall not include, and this Act shall not apply to motor vehicles operated exclusively within the incorporated limits of cities or towns."
The facts upon which this conviction was predicated may be summarized as follows:
Someone had an automobile in Dallas, Texas, which he desired to have transported and delivered in San Antonio, Texas. He engaged the Safety Convoy Company, a corporation, to make this delivery and paid the fee required for that service. The convoy company hired appellant as its employee to make the delivery by driving the automobile on its own power from the point of origin to destination, and furnished the gasoline and oil necessary to make the trip. The appellant had driven the automobile as far as Travis County when arrested.
No property was being transported in the automobile for hire at any time and the sole and only service rendered, or contracted to be rendered, was the transportation and delivery of the automobile, as aforesaid. No other vehicle was used in transporting *Page 90 the automobile and no identification plates were attached thereto.
All parties agree that if such facts show that either the Safety Convoy Company or appellant was a "motor carrier" within the meaning of the Act, then the conviction should be affirmed; otherwise, not.
For one to be a "motor carrier," a motor vehicle must be used to transport property. Here, only the motor vehicle was transported and delivered on its own power. It was not being used to transport other property.
The conclusion is reached that the facts here presented fail to show that the transportation of the automobile in the manner pointed out constituted appellant a motor carrier.
The judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.