"There is pending on submission in the Court of Civil Appeals for the 5th Supreme Judicial District of Texas the following numbered and entitled cause: No. 10740, Worsham Buick Company, Appellant, v. Mrs. Mettie K. Isaacs et al., Appellees, in which the judges of this court are unable to agree on questions of law vital to a determination of the rights of the parties, as presented by the appeal of said cause, and owing to the importance of the questions involved to the judicial procedure and to the right of the litigants to said cause, the judges of this court deem it advisable to certify same to the Honorable Supreme Court of Texas.
"Statement of the Case.
"This suit was instituted by appellees, Mrs. Mettie K. Isaacs, and her son, Alfred W. Isaacs, to recover damages for the death of the husband and father, R. W. Isaacs, who was alleged to have been killed on or about Sunday, September 9, 1928, about 3 o'clock P. M. by the negligent operation of an automobile charged to have been driven by an employee of appellant, Worsham Buick Company. For cause of action, appellees plead in effect as follows: That a new automobile owned by appellant and operated by its service superintendent, Allen J. Simpson, while drunk and traveling at a speed in excess of 70 miles per hour through the intersection of two public streets in the City of Dallas, collided with the automobile owned by and in which the deceased Isaacs was riding, inflicting injuries upon said Isaacs causing his death; that appellant was a dealer in automobiles and had accepted the benefits of Article 6686 R. S. 1925, as amended by Acts of the 40th Legislature of 1927 page 286, said Act being in part as follows: `A dealer within the meaning of this article means any person, firm or corporation engaged in the business of selling automobiles who runs them upon the public highways or streets for demonstration for the purpose of sale; and this Act shall not be construed as permitting the use of a dealer's license or number plate on any vehicle owned or used by such a dealer for any other purpose than demonstration for the purpose of sale'; that appellant had knowingly entrusted one of its new automobiles, subject to said provision, to said Simpson, who was at the time of said collision operating it on the public streets of the City of Dallas, displaying appellant's general dealer's license number and was so operating said car at the time he ran into the car of and killed said Isaacs. Appellees sought to recover on the following theories: (a) that appellant, as such dealer, having knowingly entrusted said automobile to said Simpson for operation upon the public streets while displaying such dealer's license plate; that Simpson was, as a matter of law, the agent of and operating such automobile for the use and benefit of said appellant within the scope of his agency, and therefore the negligence of said Simpson in the operation of said automobile was the negligence of appellant; (b) that in permitting said Simpson to operate said automobile on the public streets, displaying such dealer's license plate, appellant violated the law and thereby created a nuisance on the streets by reason of which said Isaacs was killed, and it was thereby liable; (c) that appellant was itself guilty of negligence in permitting said Simpson to operate said automobile in violation of law, and that such negligence was a proximate cause of the accident and resulting death of said Isaacs.
"Appellant's answer included, among other pleas, a general demurrer, general denial, and a special plea, as follows: `The defendant, Worsham Buick Company, by way of special answer says that at, before and after the occasion complained of in plaintiffs' Second Amended Original Petition, Allen J. Simpson was doing no act, nor was he performing any duty for or on behalf of the Worsham Buick Company; and the defendant further specially denies that it, in any way, ratified or condoned any act of Allen J. Simpson.'
"Disposition by the Trial Court.
"One issue was submitted to the jury—viz. measure of damages—and judgment was rendered on the findings of the jury in response
thereto for the sum of $11,500 in favor of Mrs. Mettie K. Isaacs, and for the sum of $500 in favor of Alfred W. Isaacs.
"Facts.
"Bearing upon the question certified, the following facts were established by uncontroverted evidence: that appellant was, and is, a dealer in automobiles and as such had accepted the benefits of Art. 6686 R. S., as amended by Acts 40th Legislature p. 296, 1927; that the general distinguishing number assigned to it for the year 1928 was D-2-300; that the automobile in question was a new `Silver...
