On Motion For Rehearing.
The judgment of this court affirming the judgment of the trial court was based upon the view that the evidence adduced at the trial was adequate to sustain the conclusion that Walvoord, appellant’s manager, gave express permission to Browning to use one of appellant’s cars, knowing at the time he gave such permission that Browning had no experience or skill in driving automobiles. Since the facts failed to disclose any liability based upon respondeat superior, we have rested our opinion of appellant’s liability solely upon the ground of its negligence in permitting Browning to drive its automobile upon the public thoroughfares, appellant’s managing agents having knowledge at the time that he was without experience or skill in operating such machine.
Appellant insists in its motion for rehearing that the facts are insufficient to sustain a judgment against appellant upon this theory, and in challenging the affirmance of the case calls attention to all the testimony bearing upon the manner in which possession of the car was acquired by Browning, and strongly argues that the testimony reveals no facts from which it can be concluded that Walvoord, appellant’s manager, permitted Browning to take and drive the automobile on the day the injuries occurred.
We have again carefully reviewed the evidence and have reached the conclusion that it is insufficient to disclose that Browning was using the automobile with the knowledge and consent of any responsible agent of appellant. Our misapprehension of the facts which led to the affirmance of the case was caused by the confusing method in which Browning testified and by the failure of the parties in their briefs clearly to present the evidence given by Walvoord and Browning.
On direct examination Browning testified with reference to this feature of the case as follows:
“I think it was the Sunday before I had the accident. I am not positively sure about that, but it was that Sunday or — I know it was a little bit before I had this accident, I went-by the store, and X wanted to see Mr. Walvoord but he wasn’t there. I had my horse and wagon in town, and I believe I stopped my horse and. wagon up on Main street at the Southwestern Building. I had to go up to the doctor’s office. While I was at the doctor’s office, it was Dr. Hall’s office, while I was there I called up Mr. Walvoord at the Main street store. He was in, and I told him I wanted to get one oí those automobiles. I wanted to carry my wife over to her mother’s, over in East Dallas. Mr. Walvoord asked me if I knew how to drive and I said, ‘Yes,’ I could drive one all right; and he said, ‘Well, I didn’t know you could rim an automobile;’ | and I said ‘X have run one several times;’ and I said, ‘Of course, I am not an expert driver, but I have driven; I have run an automobile;’ and he said, ‘Well, if you can run an automobile all right, go ahead out there and see if you can get one of those trucks.’ I went out there on Ross avenue and got one of those cars, the same car I had the accident with.”
On cross-examination be testified as follows:
“I did not say that Mr. Walvoord let me have this car, not that one that I had the accident with. He let me have a car before that. He just told me, ‘Well, if you can drive a car, if you are a good driver, just go ahead out there and get a car.’ That was'a week or two before this accident.”
Walvoord testified as follows:
“I talked to Mr. Browning about this accident about a week or ten days afterwards. It was a week or ten days before I "heard of the accident. He told me' about the accident; he told me what happened. He told me that he ran into a man and knocked him off his horse and hurt him pretty badly. He told me that it was a rainy day and that the streets were wet and slippery, that it was running on the rim on one side, on one wheel, that he had a blowout; that he had had a blowout and he kept sliding from one side of the road to the other and that he couldn’t steer it good; and' on account of the rain and the misit and so on and watching the back wheel, that he ran into this man, that’s what he told me. He told me that he was looking over his shoulder immediately before he ran into him. I don’t know that he told me he was just learning to drive, but I thought that he was just learning to drive anyhow; and that he couldn’t stop the car like an expert driver and probably didn’t know what to do and how t<> stop it. X think that’s about the way he told it. I knew he was an inexperienced driver. And I knew he didn’t properly know how to drive an automobile.”
The evidence discloses that Ed Broyles was in charge of the garage where the auto-' mobile was kept and from which it was taken by Browning on the day of the accident. There is no evidence showing that Broyles knew anything about whether or not Browning could drive an automobile, but, ' even if the evidence did reflect such knowledge on the part of Broyles, still there is no evidence that his granting Browning permission to take the .automobile out of the garage or allowing Browning to take it out was within the scope of his authority. We think the evidence as a whole discloses that such an act would have been beyond the scope- of Broyles’ authority.
The testimony above copied, being all the evidence the record contains on the proposition of Walvoord’s knowledge of Browning’s inexperience and all the evidence relating to permission being given Browning to operate the automobile, and such evidence being insufficient to disclose any liability, the motion *473for a rehearing is granted and the cause is reversed and remanded.
Reversed and remanded.
On Second Motion for Rehearing.
Appellee has filed a motion for rehearing which rests upon a line of authorities not cited in appellee’s brief in the cause or called to the attention of the court previous to the filing of appellee’s motion for a rehearing.
These authorities in effect support the proposition that when a defendant’s ownership of .an automobile is proved in connection with proof establishing 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 following authorities are cited in support of this proposition: Studebaker Bros. Co. v. Kitts (Tex. Civ. App.) 152 S. W. 467; Gordon v. Texas & Pacific Merc. & Mfg. Co. (Tex. Civ. App.) 190 S. W. 751; Kahn v. Home Tel. & Tel. Co., 78 Or. 308, 152 Pac. 240; Huddy on Automobiles (5th Ed.) §§ 671, 673; Ferris v. Sterling, 214 N. Y. 249, 108 N. E. 406, Ann. Cas. 1916D, 1161; Loeb v, Crow et al., 15 Tex. Civ. App. 537, 40 S. W. 506; White v. San Antonio Waterworks Co. et al., 9 Tex. Civ. App. 465, 29 S. W. 256; Missouri Valley Bridge & Iron Co. v. Ballard, 53 Tex. Civ. App. 110, 116 S. W. 99; Texas Compress Co. v. Mitchell, 7 Tex. Civ. App. 234, 28 S. W. 45; Modoc Gold Min. Co. v. Skiles, 13 Colo. App. 293, 57 Pac. 190.
An examination and application of the foregoing authorities to the facts of this case establish the conclusion that appellee’s proof to the effect that Browning was driving appellant’s delivery car at the time of the accident, and that he was appellant’s employé, constitutes a prima facie case of liability.
But, on the other hand, it may be contended that the burden of procedure thus placed upon appellant by such proof was fully met and discharged by the evidence introduced in behalf of appellant, and uneontradicted by the testimony of any witness, to the effect that no responsible agent of appellant authorized or permitted Browning to use the automobile, and to the further effect that Browning was merely “joy riding” at the time the injuries were inflicted through his negligence. In this connection we think it well to observe that the witnesses who supplied this.testimony were essentially interested more or less by reason of the relations they bore to appellant. Both Walvoord and Lang were responsible officers of appellant, and Browning was not only an employé but, being the perpetrator of the act resulting in the injury, had the added interest arising from the inclination to relieve his master from the imposition of the penalty being laid upon it for his fault and misconduct.
Furthermore, a careful re-examination of the entire statement of facts has disclosed to us evidence elicited from Browning himself by appellant while he was testifying as a witness for it, which we believe to be sufficient in connection with other evidence, presently to be noticed, to support the conclusion that he was engaged in the performance of his duties as an employé when the accident occurred. He testified that he came over from the farm that morning to the place of business of the Lang Floral & Nursery Company in Dallas with some flowers and probably vegetables and other products which he delivered there before he obtained the automobile. He then testified that after making this delivery he went to the place where appellant’s automobiles were kept and, with the knowledge and acquiescence of Broyles, who had charge of them, took the car in which he was riding at the time of the accident and went directly back to West Dallas to the farm where he was employed and where he lived, and that after he arrived there he “saw after the hogs, watered them and worked around just a little bit, about half an hour or something like that.” It thus appears from this testimony that Browning came to Dallas in the performance of his regular duty and directly returned to the. farm for the purpose of performing a duty he owed appellant.
J. C. Walvoord, who was the acting manager of the corporate appellant at the time, testified that among other duties laid upon Browning at the farm were those of feeding and looking after hogs and other stock owned by appellant and kept at the West Dallas farm. According to this witness’ testimony, Browning’s duties were continuous from day to day. He testified that Browning was supposed to be on duty from the time he got up in the morning until he went‘to bed at night, and that on Sundays, while he was not doing much work, he was supposed to loQk after and feed the stock.
The above-mentioned evidence, considered in connection with Browning’s res gestas statement at the time of the accident, and in connection with the fact that he was driving appellant's automobile delivery truck, returning to Dallas where it was kept and whither it was necessary for him to return in order to obtain and bring back to the farm the vehicle in which he came to Dallas on that day and which he regularly used at the farm, is sufficient to sustain the jury’s finding to the effect that Browning was engaged in the service of appellant at the time appel-lee received his injuries.
We therefore conclude that the judgment of the court below ought to be affirmed under the doctrine of respondeat superior. No valid contention can be made that the evi-*474denee is too frail to support the verdict and judgment. Conceding that it is obscure and weak, yet we cannot say that it is altogether unsubstantial and without probative force. It is sufficient to sustain the jury’s finding that Browning was acting within the general scope of his employment at the time he injured appellee.
Appellee’s motion for rehearing is granted, and the judgment of the court below is affirmed. i