On Appellant’s Motion for Rehearing. ’
We conclude that this court correctly held that the general demurrer of the appellant, who was the defendant in the trial ’ court, was not presented to the court and no action taken thereon; therefore, even thougb the petition was subject to a general demurrer, which we doubt, the same is waived. This ruling is clearly stated by the' Commission of Appeals in Dowlin v. Boyd, 291 S. W. 1097. See Hall v. Williams (Tex. Civ. App.) 267 S. W. 520; Fort Worth Mutual Benevolent Ass’n v. Jennings (Tex. Civ. App.) 283 S. W. 910; Meadows & Co. v. Turner (Tex. Civ. App.) 270 S. W. 899; Gardner v. Dorsey (Tex. Civ. App.) 272 S. W. 271; Gray v. Powell (Tex. Civ. App.) 282 S. W. 631, and Maunders v. Hanks (Tex. Civ. App.) 278 S. W. 508.
It will be noted that the petition specifically alleges that the automobile in question was being driven and operated by the defendant, its agents, servants, and employees. It will be further noted that each and' every act of negligence alleged in said petition recites that the defendant, its agents, servants, and employees were guilty of the negligent acts alleged. We are of the opinion that the cases of Gause-Ware Funeral Home v. McGinley (Tex. Civ. App.) 41 S.W.(2d) 433, and Miller v. Pettigrew (Tex. Civ. App.) 10 S.W.(2d) 168, urged by appellant, are not analogous to the case at bar. In the Gause-Ware Case, it will be noted that the petition specifically alleges that toe automobile was driven by one Martin, whom the evidence disclosed was toe agent of the defendant, Gause-Ware Funeral Home. In such case, it was necessary to allege that the automobile was driven by said Martin, and to further allege that at the time and place he was engaged in the course of his employment. It will be further noted that toe evidence sustains the allegations, as is shown by toe testimony of D. B. Erwin, to toe effect that toe automobile in question was owned by the defendant, and that toe operator of the automobile was then employed by -toe defendant corporation. To the same effect is the testimony of toe witness Eugene Meek, to the effect that he was employed by the defendant corporation as a taxi driver; that the automobile belonged to the defendant; and at toe time of toe accident he had a call and was then employed by the defendant. These facts are consistent with the allegations in toe plaintiff’s petition, and toe cause of action Is fully alleged and proven. Such is the holding of toe Dallas Court of Civil Appeals in Lang Floral & Nursery Co. v. Sheridan, 245 S. W. 467, 473, where it is said: “These authorities in effect support the proposition that when a defendant’s ownership of an automobile is proved in connection with proof *770establishing that injuries resulted from its being negligently driven by a servant of the defendant, a prima facie case is established, and that the burden is upon the defendant to prove that the servant was not acting within the scope of his employment when he negligently inflicted the injuries.”
The appellant cites the case of Webb-North Motor Co. v. Ross (Tex. Civ. App.) 42 S.W.(2d) 1086, 1087, and Woodward-Wanger Co. v. Nelson (Tex. Civ. App.) 11 S.W.(2d) 371, on the admissibility of Dave Erwin’s testimony. We do not think that either of these two cases is contrary to anything we have said in our original opinion, or what we have said on appellant's motion for rehearing.
In the first case cited the principally contested issue was whether Wages, the drive» of the car, was at the time of the collision engaged in his employer’s business or upon a private mission of his own, and the leading assignments of error complain of the admission of Wages’ statement in this regard; one made to appellee shortly after the collision, and the other made to Mr. Webb, vice president of appellant, a day or two later. Appellant was engaged in selling new and used cars, and had a branch establishment at Dublin, Tex., which was in charge of. Wages. The collision occurred about 9:30 o’clock on Sunday night, December 29, 1928, about nine miles east of Brownwood, on the highway extending from Brownwood through Dublin to < Stephenville. Tie bus was traveling west to Brownwood, and the Buick ear was traveling in the opposite direction. After the accident, Wages was in a dazed or stunned condition, and while he was being driven into Brownwood he made the statement objected to in the assignment. It is there stated that:
“Neither agency, the authority of the agent, nor the fact that he was acting within the scope of his employment can be proved by the declarations of the agent. Nor are such declarations admissible as primary evidence of the facts they detail.
“There is a line of authority, however, to the effect that where the agency is otherwise proved prima facie, and the declarations are made in connection with the transaction for which the principal is sought to be held or as a part of the res gestee, they will be‘admitted as primary corroborating proof. [Citing cases.]
“The authorities upon this subject are by no means uniform. In reason and upon respectable authority we think the rule, in any event, should be limited to those cases in which the declarations of the agent are, by evidence aliunde, brought within the general rule that to be admissible they must have been made in a transaction in which the agent is shown to have had authority to bind his principal in the matter of the declarations themselves. This would limit the rule to cases in which the declarations were made in the course of and were pertinent to the business of the principal which the agent was transacting; which limitation would probably confine the application of the rule to matters of contract.”
But in the instant case, Dave Erwin was the manager, the alter ego, of the defendant corporation. His testimony would be admissible to prove facts establishing the contention that the driver of the automobile was in fact employed by the corporation, arid was acting in the course of his employment when the accident occurred. We do not think that the cited cases are in conflict with our holding in the instant case.
The motion for rehearing is overruled.