Trachtenberg v. Castillo , 257 S.W. 657 ( 1923 )

On Motion for Rehearing. In the original opinion it is held that the evidence there quoted was uncontradicted. After considering the arguments of counsel and the authorities cited in the motion for new trial, as well as the many circumstances in evidence, we have concluded that we were in error, and that these circumstances are of sufficient probative force to constitute the basis for the legal inference that Allen was the servant of appellants and acting within the scope of his authority in the pursuit of his master's business at the time of the accident, therefore sufficient to make a prima facie case. Baker v. Loftin (Tex.Com.App.) 222 S.W. 195; Pierce-Fordice Oil Assoc. v. Brading (Tex.Civ.App.) 212 S.W. 707; 22 L.R.A. 1400, note.

Thus it became incumbent upon the defendants to meet such prima facie case by such evidence as would satisfy the jury that Allen was not acting within the scope of his employment when he negligently inflicted the injuries. Lang Floral Nursery Co. v. Sheridan (Tex.Civ.App.) 245 S.W. 473.

We adhere to the holding that the argument of counsel is reversible error.

Reversed and remanded.