On Motion for Rehearing.
In their motion for a rehearing, appellants contend that, because the issue as to whether or not Weeks was the agent of the National Cash Register Company and acting in that capacity at the .time the collision occurred was not submitted to a jury, the court had no authority to assume the existence of such agency and render a judgment against the National Cash Register Company. As supporting that proposition the case of Norwich Union Ins. Co. *416v. Chancellor (Tex. Com. App.) 5 S.W.(2d) 494, and cases there cited, are referred to. It is true the liability of the National Cash Register Company in this suit depended upon proof Of the agency of Weeks at the time the collision occurred, and it devolved upon the plaintiff to prove that fact in order to authorize a recovery by him against the National Cash Register Company. But the testimony upon that issue was uncontradicted and so plain that the court had a right to assume as a matter of law that such agency existed. That fact was not disputed in the testimony. The appellants, defendants below, filed a joint answer which consisted of general demurrer, a general denial, special denial of the negligence of Weeks, and charges of. contributory negligence on the part of the plaintiff in the suit. We do not think the rule announced in the case referred to is applicable.
The motion is overruled.