On Motion for Rehearing and Motion to Certify Questions to the Supreme Court.
It is stated in 9 Blashfield Cyclopedia of Automobile Law and Practice, Perm.Ed., § 6056, page 367, that:
“The general rule drawn from these particular cases and supported by the great weight of authority is that the fact that the *701name of the defendant was painted or inscribed in some manner on the motor vehicle which inflicted the injury sued for raises a presumption, or is prima facie evidence, that the defendant owned such vehicle, and that the driver was using it in defendant’s behalf.”.
The following Texas cases are cited as supporting the general, rule: Gladewater Laundry & Dry Cleaners v. Newman, Tex. Civ.App., 141 S.W.2d 951; Wilhite v. Horton, Tex.Civ.App., 116 S.W.2d 807; Freeman v. Texas Bread Co., Tex.Civ.App., 111 S.W.2d 307; Younger Bros. v. Power, Tex. Civ.App., 92 S.W.2d 1147.
Appellants contend’ that the rule stated applies only to corporations and not to other forms of business organizations. With this contention we do not agree. The rule is one of presumption or inference. The class of vehicles to which it relates is “branded” commercial vehicles, that is, trucks and automobiles bearing the , insignia of a business, regardless of whether or not the business be incorporated, be a partnership, or be one owned by an individual or group of individuals.
The basis of the rule is the well-known and usual practice of commercial firms relating to branded vehicles.
Such vehicles are generally operated by employees of the owners thereof within the course of their employment. This is obvious to all who care to observe the movements of produce, commodities and persons ■.being transported over the highways of this State. The use of a branded vehicle ■.for an unauthorized purpose or by an unauthorized individual is a departure from Ithe common and the usual, so that when it occurs, the corporation, partnership or .individual whose insignia appears upon the vehicle must disclose the unusual circumstance and dispel the presumption or inference. Obviously, the rule of inference applicable to branded vehicles is not necessarily the same as the rules applicable to other types of vehicles.
By applying the rule stated to the evidence of this case, we reach the conclusion ‘that the truck involved was owned by J. A. '& E. D. Transport Company and that the driver thereof was using it in behalf of said J. A. & E. D. Transport Company -at the time of the collision complained of.
We think it reasonably clear from the original opinion that the conclusion reached by us that for venue purposes Coy Dillard and Edna Dillard are the owners of J. A. & E. D. Transport Company is not based upon any rule of inference or presumption relating to the law of evidence. The matter is one of pleading involving as it does a particular form of business organization which has no residence for venue purposes apart from the residence of those who own such business. Consequently, we construe the plea of privilege as'asserting that the J. A. & E. D. Transport Company resides in Edwards County because its owners reside in said county. This holding is not based upon “the piling of one presumption upon another presumption.”
Appellants contend that we are in conflict with Barron v. James, Tex.Sup., 198 S.W.2d 256, and, by a supplement to their motions, say that we are in conflict with the decision of the Ft. Worth Court of Civil Appeals in the case of Van Zandt v. Schell, 1947, 200 S.W.2d 725.
The interpretation of the holding of Barron v. James by the Ft. Worth Court differs from that placed thereon by us in the original opinion. Likewise, our construction of said holding is at variance with the views expressed by Chief Justice Bond of the Dallas Court of Civil Appeals in his dissenting opinion in Dallas Ry. & Terminal Co. v. Harmon, 200 S.W.2d 854, loc. cit. 856, a case involving indemnity be'tween tort feasors, the field in which the distinction between active and passive negligence was developed as a matter of substantive tort law.
In view of these opinions, we have carefully re-examined our original decisions and have decided to adhere thereto. We remain firmly of the opinion that the case of Jackson v. McClendon, 143 Tex. 577, 187 S.W.2d 374, 376, supports our original holdings in this case. In the case cited, the Supreme Court said: “In line with these cases (Brooks v. Hornbeck, Tex.Civ. App., 274 S.W. 162, cited with approval in Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062; Murray v. Oliver, Tex.Civ.*702App., 61 S.W.2d 534; Martin v. Turnbow, Tex.Civ.App., 96 S.W.2d 730; Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098; Evans v. Jeffrey, Tex.Civ.App., 181 S.W. 2d 709, among others) it is clear, we think, that the act of ‘filling the well with liquid cement * * * without having pr& viously set up and connected machinery of sufficient capacity to be used to remove the cement before it became hardened and set’ is a trespass within the meaning of the statute and constitutes such an active and positive act of negligence sufficient to fix venue in the county where said acts were committed.” (Italics supplied.)
We do not believe the Supreme Court would have cited Jackson v. McClendon with approval in Barron v. James had it intended to overrule its former decision.
Although we are admittedly in conflict with an opinion rendered by another Court of Civil Appeals (Van Zandt v. Schell, supra) upon a question of law, and refuse to concur with said conflicting opinion, appellants’ motion to certify questions to the Supreme Court will be overruled.
Rules 462 and 465, R.C.P. should be construed with Rules 475, R.C.P., which reads as follows:
“Rule 475. Original Proceedings: Petition for Mandamus to Compel Certification. Where a motion for leave to file a petition for mandamus against a Court of Civil Appeals to require that court'to certify a question on the ground of conflict is granted, the petition shall be docketed and set down for hearing both on the question whether there is a conflict and on the merits of the question involved in the conflict. If the petition be granted the mandamus will then issue unless the Court of Civil Appeals conform its ruling and decision to those of the Supreme Court; or the Supreme Court may, upon such hearing, if it be deemed proper, direct the Court of Civil Appeals to conform its ruling and decision to those of the Supreme Court, without the necessity of certifying the question to the Supreme Court.”
Under the provisions of Rule 465, R.C.P., a motion to certify is a prerequisite to the filing of a petition for mandamus in the Supreme Court. Hursey v. Bond, 141 Tex. 337, 172 S.W.2d 305. This motion jmay be filed at any time within fifteen days after the rendition of an order overruling a motion for rehearing in the Court of Civil Appeals. When the motion to certify is overruled, the movant may then apply to the Supreme Court for a writ of mandamus under the provisions of Rule 475, R.C.P. The actual issuance of the writ, in the event the Supreme Court be of the opinion that the Court of Civil Appeals should have conformed to the decision with which it is in conflict, is, however, contingent upon the continuing refusal of the Court of Civil Appeals to so conform. Consequently, despite our action in overruling the motion for rehearing, we have authority to change our decision in the case so as to make it conform to such opinion as may be rendered by the Supreme Court in passing upon a petition for mandamus. - We decline, therefore, to certify questions to the Supreme Court prior to the time such opinion is rendered.
Appellants’ motion for rehearing and motion to certify are both overruled.