*1 BROWN, Cir- United States Before CAMERON Judges, WHITEHURST, Dis- cuit Judge. July 1963. trict Rehearing Denied WHITEHURST, District fol- in this case accident involved The night

lowed a of fun entertainment. Fulton, plaintiffs, The Mr. and Mrs. joined Shaw, his Mr. guests wife as their to attend automobile evening July 15, dance they stopped Enroute to at the the dance Cassidy home Mr. for a and Mrs. champagne three round couples cocktails. The proceeded car- to the dance rying in- between them three bottles of toxicating liquor. dance lasted 9:00 o’clock until 1:00 o’clock in drinking morning. They were at evening. While at same table company dance and each others the de- others fendant and most of the consumed average four or of at least five drinks the dance was over each. When party until 3:35 with friends visited morning when the three o’clock in couples, in the with Mr. Shaw respective wheel, to their started Shortly, Mrs. Shaw homes. remonstrat- driving. her husband his ed with testimony occupants speed effect that the car high reached as as 70 M.P.H. automobile stop Mr. Shaw failed heed and that signs or two at one intersections they Street, not- reached DeForrest withstanding protests repeated dif- occupants, Mr. at Shaw continued ferent high speed. rate at the scene officer, from his observation speed of estimated the car 40 and 50 M. to be between the Shaw speed zone where the limit was P.H. in 30 M.P.H. at fixed proceeding down DeForrest While car swerved to the defendant’s Street *2 546 ing specifications error. of Since parked at left, an automobile the struck judgment must have determined that the we feet to curb, 176

the traveled assignment of a tree. be reversed on the sixth error, struck other of the street and side unnecessary discuss to we deem it a sidewise impact car into This threw the causing auto- the others. a Pontiac it hit motion to feet 12 parked about street mobile on the Practically com- evidence none of the knocking 71 tree, Pontiac the from the ing to the from side was directed either yard. neighbor’s is evi- There feet into a Certainly of accident. issue unavoidable parked re- in was dence that the Pontiac proven. theory offered or no definite was emergency gear as verse to serve condi- was the some evidence about impact sowas The force of the brake. right defend- tion of the rear tire on the great a total wreck was that the Pontiac accident, Plain- ant’s car after the junk yard. sent the was to right rear tire Exhibit 5 shows the tiffs’ only testimony subject flat. The on the police ar- and ambulance the When expert plaintiff’s came from the car, at the location of the rived they really cross examination. He said he occupants, Mrs. found one opinion whether it was did not have an dead, Cassidy, of the others and some any not, express flat he declined to injury. degrees varying personal of opinion as when or how the flat to by police, questioned de- the the When occurred. car, ownership the fendant admitted of driving it that he had been but denied necessary for it was We think anything. hit denied that he had theory some of the defendant to establish including injured, defendant the cause of the accident which excluded the hospital Shaw, were transferred to the negligence parties. As un the we again the officer where subject, it is Texas law on the derstand again questioned who the of unavoidable accident that the issue that he had driven his but denied only there is that exists when evidence “ * * * by police the with his confronted something neg other than the steering fingerprints taken the parties ligence (to the the one of * * finally wheel, the defendant admitted that event) injuries the caused driving been the car at the time he had Bailey, Railway & Terminal Co. v. Dallas nothing accident, but he said 379, S.W.2d tire, he, nor did the officer uniformly by held the courts It has been testimony, claim that a in his make Texas that in order to determine flat tire or a “blow-out” caused his sever- the issue unavoidable accident whether positive- In no witness al collisions. case, in a the facts of each involved ly erratic course of the de- attributed the particular must be examined case with automobile, and its several col- fendant’s lisions, ascertaining whether there is view of existence of flat tire on theory presented which under the ac automobile. the happened could have notwithstand cident ing parties the the transaction ex brought plaintiffs this action un- degree required by care the ercised Statute, Texas which affords a der the Leon, Price, ux., et al. v. et Tex.Civ. law. guest remedy passen- an automobile App., 202 309. Under Texas law S.W.2d injured gross ger proximately issue of rule is that the unavoidable negligence of his host. The defendant presented unless is not it be accident among responded with several defenses accident resulted that shown unavoidable which were volenti negligence cause other than some negli- injuria, contributory non fit Born, Tex.Civ.App., parties. Good gence. do not think 589. We that 197 S.W.2d accident issue of unavoidable was The trial resulted in a verdict assign- case. appealed, present close It was defendant. Plaintiffs jury. The error to it to the case submit

is therefore disposi-

Reversed and Remanded for

tion not inconsistent herewith. Rehearing

On Petition for

PER CURIAM. “positively” The word is deleted and “substantially”

the word is substituted

so that “In no sentence reads: substantially attributed er-

ratic the defendant’s automo- course of collisions,

bile, and its ex-

istence of

automobile.” respects, Appellee’s pe- In all other rehearing hereby

tition Denied. LABOR NATIONAL RELATIONS Mallet-Prevost, Marcel Asst. Gen. Petitioner, BOARD, Counsel, Manoli, Dominick L. Assoc. Gen. Counsel, Davison, Warren Atty., M. N. L. WAREHOUSE, AMERICAN COMPRESS B., Washington, C., petitioner. D. DIVISION OF FROST-WHITED Joe Mathews, Dallas, Tex., P. for re- Respondent. COMPANY, Inc., spondent. LEWIS,* RIVES, Before BELL, United States Judges. Circuit Aug. LEWIS, Circuit The National Labor Relations Board Rehearing Denied respondent found that had violated Sec 8(a) (1)1 tion of the National Labor by questioning Relations Act em its ployees concerning sympa their union thies and that it had violated Section 8 (a) (3) (1) discharg- of the Act in * Circuit, sitting designa- 2. 158(a) Of Tenth § U.S.C.A. shall “It be an un- practice employer— tion. labor fair for an “ (3) by regard discrimination in to hire 158(a) § 1. 29 U.S.C.A. “It shall be an employment or tenure of or term or practice employer— unfair labor for an employment encourage condition discourage “(1) with, restrain, to interfere or co- membership in labor or- employees erce the exercise of the ” * * * ganization : rights guaranteed in section this ti- * *” * tle;