On Motion for Rehearing.
In our original consideration of this case, we assumed the telegrams passing between appellant and the California corporation were introduced in evidence hy appellee. In this we were in error. They were introduced hy appellant. But it is unimportant by which side the telegrams were offered. They were in evidence for all purposes, and were as available to the plaintiff as if offered in his behalf. Gulf, C. & S. F. Ry. Co. v. Cusenberry, 86 Tex. 525, 26 S. W. 43. It does not affect our ruling that these telegrams and the testimony of Myers established conclusively the authority of the California corporation and Myers to contract with Morrison to transport the can back to Dallas. Such authority being so shown, we adhere to the view that the error in permitting Morrison to testify to the conversation with and statements of Myers prior to proof of such authority is harmless.
We also adhere to the ruling that under the authority conferred it was competent for the California corporation and Myers to enter into a contract with Morrison whereby the status of the latter would become that of a servant of appellee. Appellant calls attention to the fact that Morrison could not drive both ears. We do not regard this as conclusively establishing that the California corporation was authorized only to negotiate an independent' contract for transportation, or that Morrisdn’s status was in fact that of an independent contractor. In this connection we quote: “Assistants Employed by Servant —Authorization or Ratification by Master. Subject to the limitation that the acts complained of must be within the scope of the servant’s employment, a master is liable for the acts of one whom the servant employs under authority given him by the master to assist in the performance of the master’s work. The authority to employ assistants may be either express or implied; it may be implied from the nature of the work to be performed, from the general course of conducting the business of the master by the servant, or from the circumstances of the particular ease.”
Also from 18 R. C. L. p. 785: “If the employee had' authority to employ assistants the employer will be deemed liable; otherwise he will not be compelled to respond. Such authority may be implied from the nature of the work to be performed, and also from the general course of conducting the business of the employer by the employee for so long a time, that knowledge and consent on the part of the employer may be inferred. It is not necessary that a formal or express employment on behalf of the employer should exist, or that compensation should be paid by or expected from him.”
It was but an evidentiary matter upon the issue of whether Morrison was a servant or independent contractor.
In the original brief, it is stated Morrison violated the Penal Code of this state in accepting appellee as a passenger for hire; that appellant could not anticipate Morrison would' carry passengers for hire in violation of the Texas law; that the California corporation had no authority, express or implied, to negotiate a contract with Morrison that would authorize the latter to violate the Texas penal statutes. In the motion for rehearing these theories are again urged. •
Appellant cites and refers to chapter 314, Acts 41st Leg. (1929) p. 698, known as the Motor Carriers’ Law, which was violated. That act deals with motor carriers operating “for the purpose of carrying or transporting property for compensation or hire.”
Morrison was the mere driver of a privately owned passenger car. He was authorized to drive it. In accepting appellee as a passenger for hire, Morrison certainly did not violate the act cited.
Perhaps the law appellant had in mind is the Act of the 40th Legislature (1927) chap. 270, p. 399, amended by chapter 78, Acts 41st Leg. (1929) p. 196, First Called Session, commonly known as the Motor Bus Law (Vernon’s Ann. Civ. St. art. 911a; Vernon’s Ann. P. C. art 1690a). This law relates to persons, corporations, etc., operating motor-propelled passenger vehicles “and engaged in the business of transporting persons for compensation or hire.”
Morrison was not engaged in the business of transporting persons for compensation or hire upon the highways of this state. Nor was appellant so engaged. Morrison was simply engaged in the task of driving a passenger ear to Dallas to be there delivered to appellant, under a contract so to do. Neither Morrison nor appellant violated either of the laws mentioned in undertaking to transport plaintiff for hire from El Paso to Big Spring. Hoffman v. State (Tex. Cr. App.) 20 S.W.(2d) 1057.
*716The twelfth issue reads: “Do you find from a preponderance of the evidence that, at the time the automobile in question was delivered to A. E. Morrison, to he driven to Dallas, Texas, it was contemplated by the defendant that passengers would be carried by him therein ?”
This was answered “Yes.”
In the brief various propositions are leveled against this issue, the use of the w'ord “contemplate” therein, and the finding upon the issue. In the original consideration of this appeal, we were of the opinion these propositions presented no error and called for no discussion. The objections made we regard as hypercritical. But, if not, the finding is immaterial, in view of the eleventh finding that it was within the actual scope of the employment of Morrison to undertake to carry the plaintiff from EÍ Paso to Big Spring.
In the original opinion, the assignments complaining of improper argument by counsel for appellant were overruled with the brief comment that we did not consider the argument reversible under the circumstances. .
The. bill shows that Mr. Holliday in the closing argument said:
“The testimony in this case shows that Mr. Groseclose was sent to Cherokee County at sixteen years of age, for which he was pardoned, and later he went to Walker County and was later pardoned. As I reminded you in the beginning of my short and brief remarks, the purpose of society is to reform men. This man came out here and left the past behind him, married a beautiful young woman, has a wife and child, has led a clean and industrious and useful life. Granted, for the argument, that they brought it in here to show the reduced earning capacity, but, after, gentlemen, he came back before you and admitted he was away and wasn’t making any money during that period, was there any necessity, in all fairness and all justice, for them to come in here and try to further spread the slanders against this man’s past—
“Mr. Touchstone: We object and take a bill of exceptions, it is improper, inflammatory and prejudicial.
“Mr. Holliday: I remember that great novel of Victor Hugo’s, where Jean Valjean stole some bread for his family—
“Mr. Touchstone: We take a bill of exceptions.
“Mr. Holliday: And that he was sent to the penitentiary.
“Mr. Touchstone: It is out of the record, prejudicial and inflammatory.
“Mr. Holliday: And that he later got out or escaped and was again sent to the penitentiary for stealing candles from the priest, there was the testimony of the priest that he gave them to him, but he was sent again to prison and escaped and served a useful and philanthropic life, and until God to'ok him back into his bosom, he was hounded throughout the earth. I am reminded of O. Henry, that great Texas writer, who served a term in the penitentiary.
“Mr. Touchstone: We object and except to anything about O. Henry as out of record, inflammatory and prejudicial.
“Mr. Holliday: What has that to do with this case? The penitentiary was long behind Mr. Groseclose. It served no purpose except their purpose in this case, it had nothing to do with the fact that he had lived in your community, married one of your girls, and raised a beautiful little child and performed all and every duty, and yet that was brought -in here for only one purpose and that is to try and raise the passion and prejudice of this jury against this man, when it has nothing to do with this accident. Do you think that is fair? All right, I don’t.”
This qualification is appended to the bill:
“Mr. Brown, counsel for defendant, in the opening argument for the defendant, discussed the question of the veracity of the plaintiff and said that there was an old rule, which was entitled to consideration in a matter of this sort, which was established as far back as the days of the ancient Batins, to the effect that where a witness’s testimony was false in one particular, it was false in ail; further, in the argument he quoted from Gibbon’s ‘Roman Empire,’ in which he said that loud speaking was not argument, and referred to that class of lawyers of whom Gibbon said ‘they filled the forum with their turgid eloquence.’ And Mr. Brown, at two or three other times in his argument, while speaking of matters in the record, mentioned the sayings of famous men to elucidate the points that he was making; and, also, Mr. Brown, in reference to plaintiff, further said in his argument: ‘Gentlemen of the jury, ever since this trial first began, this defendant has been looking down a legal gun barrel, and this isn’t the first time that plaintiff has had someone looking down a gun barrel.’
“And attorney Touchstone, in the closing argument for defendant, argued that plaintiff would not have admitted his prison record unless defendant had brought the record to prove it on him, that he had concealed it twice before, and that the plaintiff tries to excuse himself on the ground that he did not want his wife to know of his sentence, and this record shows that he was married at the time that he served in the penitentiary, whereupon, he read the prison record admitted in evidence. Mr. Touchstone, aiso, in his argument, stated to the jury that it was an unpleasant task to expose plaintiff’s prison record, that the plaintiff himself made the record, and that the courts admitted evidence of the matters to be considered by the jury on the credibility of the witness and on his earning capacity, and that the lawyers were com*717pelled to show the record in duty to their clients; and while this plaintiff would have you believe he was making as high as $14.00 a day as an oil driller, as a matter of fact, he was working for the State of Texas for nothing.”
We stated in the original opinion counsel for appellant had strongly and harshly attacked appellee because of a previous prison record. The qualification of the bill shows that Mr. Brown had so attacked the plaintiff. This statement implies no criticism of Mr. Brown. The evidence justified the attack so made. Mr. Touchstone, in a proper manner, ■had also commented upon such prison record. Mr. Brown, in attacking plaintiff’s veracity, also referred to a rule of the ancient Latins, quoted Gibbon’s comment on loud speaking and turgid eloquence, and mentioned the sayings of famous men.
The plaintiff’s counsel had the right to reply in kind to the argument and minimize, if he properly could, the damaging effect of such argument, and the evidence upon which it was based. In view of the argument to which he was replying, we think the matter presents no reversible error.
Mr. Moore, counsel for appellee, said;
“They say well, anything you say, it doesn’t make any difference, those telegrams here are all of the correspondence in regard to this transaction and they demonstrate that at no time was this man employed or authorized to carry passengers or anything of the kind. Now, is that so? All right, we will see whether that is so. We will take their last telegram, if I can find it. They first say ‘have man to return both for thirty dollars each better return them,’ they say. Now, to the Commercial Credit Company, Los An-geles, from the Dallas office, ‘If your wire regarding Walter Spears .and Owen Cates means you can get cars to Dallas for thirty dollars apiece with no other expenses added send them back also send the Gray car back Stop We understand ninety dollars is all expense involved in getting three cars to Dallas advise.’ Now, they would read that to you and say that shows clearly that this man was not authorized to allow these cars to go through on any other proposition except $30.00. Well, now, what about the last word on this telegram ‘advise’, have they brought before you any telegram advising? Where is the telegram in answer to that telegram, there must have been one, it asks for an answer? That was sent on the 5th of August, the cars didn’t go out until the 6th. If that settled it, why didn’t the cars go out on the 5th? They probably sent an answer to the telegram, but they don’t want to bring that answer in here.”
“To this remark Mr. Touchstone, one of the attorneys for the defendant, said ‘We object to that as outside of the record, no evidence to support that,’ whereupon Mr. Moore replied:
“ ‘That is the inference you have the right to draw. That telegram calls for an answer, there has no answer been brought here. Why not? How do we know they didn’t make any answer to that telegram to this effect: ‘Passengers will be carried in the autofiiobile which will cover the expenses.’
“The Court: Mr. Moore, I think you are out of the record.
“Mr. Moore: I think that is a logical inference, if the Court please. .
“Mr. Brown: The witnesses say that is all of the correspondence.
“Mr. Holliday: Judge Moore stated that in his argument, that is what they said.
“Mr. Moore: What is the Court’s ruling?
“The Court: Yes, I will withdraw the argument.
“Mr. Moore: All right, the Court rules that argument is not proper and I join in asking the jury not to consider it. I don’t want to make any argument here that is not strictly proper in every respect.”
The last telegram did request a reply, and why none was sent is unexplained.
Mr. Moore’s argument was a legitimate inference, and he had a right to make it.
The bill shows further:
“Mr. Holliday: Now, then, if we are right and you believe under the evidence we are right, that the cause of this collision was a defective hanger, weak back or strong back, the bones are separated, as Dr. Stevens told you, into two parts, I don’t know whether you call it separation or break, they are separated in fact, it looks like to me I could put my finger in it, it may be, God only knows, that they .broke it, and if he had a weakened back, no doubt it will gradually separate.
“Mr-. Touchstone: We take exception about broke his back as prejudicial and inflammatory.
“And later in the closing argument of Mr. Holliday, the following occurred:
“Mr. Holliday: And I say, gentlemen, under the evidence in this case, that spring hanger left Los Angeles defective, they gave us the defective machine, took oui money to ride and broke our back and they ought to pay for it.
“Mr. Touchstone: We take a bill to broke our back, it is out of the record, inflammatory, prejudicial and improper.
“Mr. Holliday: If it suits better, instead of broke our back, I will say they separated our back. What is the difference? It is useless, just the same.”
Dr. B. P. Stevens, witness for defendant, testified he found no evidence of a fracture of the fifth lumbar of plaintiff’s backbone, but plaintiff was not bound to accept Dr. Stevens’ *718testimony that there was no evidence of a fracture in view of the testimony of Dr. Herbert Stevenson, witness for plaintiff, who testified:
“The posterior portion of the fifth lumbar vertebra is not well shown because it is more or less a conglomerate mass here, it is not well shown in this picture. There is, in my opinion, a fracture at that point, which allowed the bone to be shunted or dislocated forward. The other pictures we have recently taken will show that much clearer than this picture shows it. * * *
“It is also compressed to a great degree, allowing the back to fall upon the pelvis, that causes a certain deformity in the back that is very apparent in this case, you can put a big pocket knife — you can put your whole thumb, fully that length, in the inter-space, due to the shunting forward of that vertebra. * * *
“There is more or less jumbling at this point, you see it is so clear these other points, showing there must have been a fracture in here to have allowed this to be displaced as far as it is. This jumbling shows, also, the creation of callous there that is following a fracture. * .*■ * •
“This picture is, I think, quite a little clearer, it shows the lumbar vertebra distinctly, especially at its posterior end; it also shows the fracture through the lanima a little more clearly, there it is right through there; it shows irregularity a little more distinctly in this picture than in the other, that compression fracture of the body of the vertebra. ■ * * * ”
This testimony of Dr. Stevenson warranted Mr. Holliday in referring to plaintiff’s injury as a broken back.
The motion for rehearing is overruled.