Reed

This action was commenced against the defendants Joe Parra as owner and Frank Fernandez as driver of a taxicab which, on September 4, 1924, backed into the plaintiff, causing the injuries complained of. Judgment was rendered against both defendants. The judgment as against the defendant Fernandez has become final and this is an appeal by the defendant Parra.

The principal contentions of the appellant are that there is (1) no allegation in the complaint, (2) no evidence in the record and (3) no finding of fact that at the time and place of the accident the defendant Fernandez was acting as the agent of the appellant and within the scope of his employment.

As to the first point it is true that there is no specific allegation that when the injury to the plaintiff occurred Fernandez was the agent or employee of Parra. It is alleged, however, that at the time in question Fernandez was operating the car, the same being the property of his co-defendant Parra, and acting within the scope of his employment. But the omission specifically to allege agency was cured by what took place at the trial. When the case was called and the trial judge had examined the pleadings, he addressed the…