(dissenting).
I cannot agree with my associates in the conclusion that there is any evidence in the record of this case tending to show that Carrol Scarborough, whose negligence is alleged in the petition to have been the cause of appellant’s injuries, was at the time such injuries were inflicted an agent or employee of appellee engaged in work for appellee.
The undisputed evidence shows that Car-rol Scarborough was hired and his wages paid by the Sugarland Industries, a trust organization, separate and distinct from the Imperial Sugar Company, a corporation organized under the laws of this state; and that at the time of the accident in which appellant was injured Scarborough was engaged in performing services for the trust organization in which the appellee corporation had no interest. I-Ie was driving a truck owned by the Sugarland Industries and on his way to repair a gas pipe in a house owned by said organization.
The Sugarland Industries, trust association, was organized on- January 1, 1919, by I. H. I-Cempner, D. W. Kempner, W. T. Eld-ridge, Jr., and G. D. Ulrich. The purpose of the organization, as stated in the declaration of trust, was to engage in farming, manufacturing, buying, and selling goods, wares, and merchandise, at wholesale and retail; owning, developing, and subdividing lands, and buying, owning, and selling shares of stock in corporations and associations.
It owns and carries on its business through a number of agents and instrumentalities, corporate and unincorporated. The appel-lee was one of those instrumentalities. The mere fact that servants and employees of the trust organization were also servants of the appeilee corporation could not make appellee responsible for the negligence of any such servant while he was engaged in performing the duties of his employment as servant of the trust organization, especially when the business in which the service was being performed was one in which the appellee had no interest, as is shown by the undisputed evidence in this case.
- The petition upon which the case was tried alleged that appellee was engaged principally in the importation, manufacturing, and refining of sugar and its "products, and owned extensive building, mills, and factories in which its said business was carried on under a trade-name, and it was “commonly known and designated as the Sugarland Industries of Sugarland, Texas”; and that appellee owned in connection therewith a number of rent houses in the town of Sugarland, which were *414occupied by its employees. ' This petition further alleges: “That appellee was the owner of one certain automobile truck, bearing tbe 1927 license number, No. 362-702, and company number, No. 942; which was then and there being driven at the direction of said defendant, and for its use and benefit by its agents, servants and employees, while acting within the scope of their employment in that behalf’’’; and that this truck, when it struck and injured the plaintiff, was occupied by appellee’s agents, servants, and employees, and was going to one of the houses owned by appellee for the purpose of connecting up certain gas fittings or pipes in said house.
There is no evidence to sustain these allegations, but on the contrary, as before stated, they were all disproven by the uncontradict-ed evidence, except the allegations that ap-pellee’s principal business was the manufacture and sale of sugar, as therein alleged.
Appellee was incorporated under the name of Imperial Sugar Company, and the buildings owned by it were those situated on a tract of about 16 acres of land .conveyed to it by the Sugarland Industries, trust 'association, which formed a part of its manufacturing and refining plant. The Sugarland Industries owned all the stock of the appellee corporation, and most if not all of the buildings and houses in the town of Sugarland, except those situated on the land conveyed by it to appellee; it also owned and transacted a business through the following agents and instrumentalities: The Sugarland Industries, the Sugarland Printing Company, the Sugarland Feed Company, Imperial Bank & Trust Company, Imperial Lumber Company, Imperial Mercantile Company, Iinperial Drug Store, Imperial Creamery, Imperial Meat Market, Imperial Gin, and Texas Commercial News.
As before stated, both the truck which Scarborough was driving and which caused the injury to plaintiff, and the house and gas pipes which he, an employee of the Sugar-land Industries, was going to repair, were shown by the undisputed evidence to be owned solely by the Sugarland Industries trust organization.
The evidence set out in the opinion of the majority showing that’the truck which Scarborough was driving at the time appellant was struck and injured thereby had been frequently used by Scarborough as an employee of the appellee sugar company in the service of appellee, and was kept on the premises of the appellee, does not, in view of the undisputed evidence that Scarborough was employed and his wages paid by the Sugarland Industries association, and that the truck was 'owned by the Sugarland Industries, and that at the time appellant was injured thereby Scarborough was using and driving the truck in the service of his master and employer, the Sugarland Industries, on his way •to repair property of the Sugarland Industries in which appellee had no interest, raise an issue as to the ownership of the truck, nor as to whose service Scarborough was engaged in at the time of the accident in which appellant was injured. The facts that Scarborough was often and probably generally engaged in the service of the appellee, and that the truck, was kept on the property of appellee, has no probative force against the undisputed evidence showing the service in which Scarborough was engaged at the time of appellant’s injury and the ownership of the truck.
Nor does the evidence set out in the opinion of the majority raise the issue against ap-pellee of its being a joint tort-feasor with the Sugarland Industries in the injury of appellant.
It may be that this evidence would be sufficient to hold the Sugarland Industries responsible for an injury caused by one of the servants of the appellee while engaged in work for appellee, but I cannot see on what rule of law or reason the appellee can be held liable for an injury caused by one of these servants of both associations while engaged in work for the Sugarland Industries association in which the appellee had no'interest.
It seems clear to me that the judgment of the trial court is correct, and should be affirmed.