"A collision occurred in the City of Fort Worth at the intersection of East Third Street with Jones Street between a delivery truck owned by the West Texas Produce Company, while being driven by its employee, Buck Crawford, and an automobile driven by R. F. Wilson. At the time of the collision, Wilson was driving east on East Third Street and Buck Crawford was driving the truck in a northerly direction on Jones Street. As the result of that collision Mrs. Wilson, the wife of R. F. Wilson, who was riding with him in the automobile at the time, sustained serious personal injuries as the automobile in which she was riding was turned over from the impact with the truck and she was thrown to the ground.
"In behalf of himself and his wife, R. F. Wilson instituted this suit against the West Texas Produce Company, the owner of the truck, to recover damages for the injuries so sustained by Mrs. Wilson, and from a judgment rendered in plaintiff's favor for the sum of $17,000.00, the defendant has prosecuted this appeal.
"The recovery was based on findings by the jury of negligence on the part of Buck Crawford while driving the truck, which negligence the jury found was the proximate cause of Mrs. Wilson's injuries. The principal controverted issue determined by the trial court was whether or not at the time of the collision Buck Crawford was performing a service for the defendant in making a delivery of produce, as contended by the plaintiffs, or was he then engaged on a private mission of his own, namely, in going to a foot ball game, as contended by defendant.
"The evidence shows that the day on which the accident happened was Armistice Day, and the testimony introduced by the defendant was to the effect that Buck Crawford had been excused by the defendant from further service for the day and defendant had given him permission to use its truck in going to a foot ball game, to which he was going at the time of the accident.
"In answer to special issues, the jury found (1) that at the time of the collision Buck Crawford was making a delivery of produce for the defendant and he was not on his way to attend the foot ball game as alleged by the defendant; although prior to the accident Abe Fox, representative of defendant, had given his consent for Crawford to use the truck for the purpose of attending the foot ball game during the day. (2) Buck Crawford was guilty of negligence, which was the proximate cause of the collision, in driving the truck at a speed of 28 miles an hour, and in failing to keep a proper lookout to avoid a collision with cars traveling east on Third Street, as plaintiffs' automobile was traveling at the time of the accident, and plaintiff, R. F. Wilson, who was driving the
automobile was not guilty of contributory negligence in the several particulars alleged by defendant.
"The proof showed that the West Texas Produce Company was a corporation engaged in the purchase and sale of fruit and other farm produce, and in delivering such produce sold to their customers they used a truck. That Buck Crawford was employed to drive the truck and make deliveries to customers of the produce sold. Abe Fox was employed by the defendant as house foreman and was in general charge of all the delivery business.
"The plaintiff introduced testimony tending to show that at the time of the accident Buck Crawford was out on a trip for the purpose of delivering produce for the defendant.
"The evidence tended to show that the accident happened between one and two o'clock of the afternoon of November 11th. After the collision a license plate which had been lost from the truck was picked up and the chief traffic officer of the city turned it over to two emergency officers, L. C. Wilkerson and L. W. Norwood, with instructions to investigate the accident, especially in view of the fact that the driver of the truck had failed to stop and render aid to the injured persons and had apparently sought to evade discovery by the officers of his identity. Wilkerson and Norwood were introduced as witnesses in behalf of plaintiff and testified that about 2:30 o'clock of the afternoon of November 11th they went to the defendant's place of business, which they found then open and persons at work in the building; that two of the persons so found by them were Harry Bockstein, the president of defendant corporation, and Abe Fox, its house foreman. Those witnesses carried with them the license plate that belonged to the truck and made inquiry of the whereabouts of the driver of the truck. According to their testimony, Bockstein referred them to Abe Fox for the information desired. In that connection Wilkerson testified that he then applied to Fox for the desired information, his testimony being as follows:
"`Well, I asked him about the truck, and who was driving it, and he told me. I asked him was he in there and he said no, that he was out on a delivery; that he had a few hurry up deliveries to make and wanted to go to a foot ball game that afternoon and he was going to let him off."
"According to the testimony of those witnesses Abe Fox was requested to appear at the City Hall on the following morning and bring with him the driver of the truck. Both of those witnesses further testified that on the following morning, which was November 12th, Abe Fox and Buck Crawford did appear at the City Hall and there made statements substantially to the effect that at the time of the accident Buck Crawford was making some hurry up deliveries of produce for the defendant preparatory to going to a foot ball game, and at the time of the accident he did not know that any material injury had been done to plaintiff's car, but that he thought that his truck had merely scraped the fenders of plaintiff's car, and that was the reason he did not stop to ascertain whether any damage had been inflicted upon the plaintiff's car or injuries to its occupants.
"The defendant objected to the introduction of the testimony referred to above, on the ground that the purported statements of Abe Fox were hearsay and necessarily conclusions on his part as to what the driver of the truck was doing at a time when Fox was not present, and on the further ground that such statements by Fox were not made in the performance of any service on his part to the defendant and were made without any authority to bind the defendant by admissions against its interest.
"Harry Bockstein testified that Buck Crawford was in the employment of defendant company at the time of the accident. He further testified as follows:
"`He had no special delivery route but worked wherever he was told. The truck he was driving on November 11th was one of our trucks. Abe Fox was working for the company at that time. He was house foreman. His duties were to check and load trucks and to take care of the men. If there were any deliveries to be made he would check them in and direct them where to make the deliveries. He was in charge of the business. * * * Whenever Abe Fox checked out a truck with a load, it was his duty to see that the boy went and came back, and everything was all right. It was one of Abe Fox's duties to hire and discharge the men.'
"The testimony referred to above, of which complaint has been made, was offered by the plaintiffs in the development of their case originally as admissions against the interest of the defendant.
"On a former day of this term of court, assignments of error addressed to the submission of all the testimony referred to...
