On Motion for Rehearing.
We think appellant is in error in its statement on motion for rehearing that the Court struck that portion of defendants’ First Supplemental Answer quoted in our original opinion. While the order is somewhat ambiguous it seems reasonably clear that only those portions of defendants’ pleading which referred to the award of the Industrial Accident Board were stricken. On the other hand, it definitely appears that the Court denied defendants permission to file their Second Trial Amendment, to which appellants refer in their motion, and that defendants excepted to such action but have presented no point thereon on their appeal. Therefore Defendants’ Second Trial Amendment cannot be considered as any part of their pleading.
It is true that the only jurisdictional facts alleged by plaintiffs showed jurisdiction only under (b) of Art. 8306, Sec. 19, V.A.C.S., and that these facts were not proved since it is conceded that defendants were residents of Lubbock County when the suit was filed. However the evidence is sufficient to show a contract of hiring between Tom Long d/b/a Long Freight Line and Baker, in Gaines County, which would confer jurisdiction on the District Court of Gaines County under (a) and also that both Long and Baker resided in Gaines County when such contract was made, which would confer jurisdiction under (c) of the Statute. Under Rules-67 and 90, R.C.P., appellants’ contention that the Court had no jurisdiction because of defendants’ lack of pleading is without merit. If a question of venue raised by a controverting plea required by Rule 86, R.C.P. to be made under oath, may be tried by implied consent under Rule 67 as-indicated in Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688, we see no reason, why jurisdictional facts may not be established by trial by implied consent under this rule, in the absence of pleading. Also-since defendants did not by motion, exception or otherwise attempt to secure the-action of the Trial Court upon the defect in plaintiffs’ pleading in its failure to allege jurisdictional facts under (a) and (c) of the statute, they waived their right on-appeal to question the sufficiency of the-pleading on this ground under Rule 90, R.C.P. Texas Osage Co-Op. Royalty Pool v. Kemper, Tex.Civ.App., 170 S.W.2d 849 Writ Refused; Litterst v. Edmonds, Tex.Civ.App., 176 S.W.2d 342, Writ Refused. W. M.; Blair v. Archer County, Tex.Civ.App., 192 S.W.2d 573.
If we assume that the jury would have found the facts to be that at the-time Baker received his fatal injuries he-was driving the red Dodge truck which: was registered as a Long Freight Line-truck and that he was an employee of Long. Freight Line, such facts would have raised a presumption that at such time Baker was. acting within the scope of his employment, for Tom Long, d/b/a Long Freight Line, which in the absence of any evidence to-the contrary would raise an issue of fact for the jury. Globe Laundry v. McLean, Tex.Civ.App., 19 S.W.2d 94; Mrs. Baird’s Bakery v. Davis, Tex.Civ.App., 54 S.W.2d 1031; Claer v. Oliver, Tex.Civ.App., 62 S.W.2d 354; Houston News Co. v. Shavers, Tex.Civ.App., 64 S.W.2d 384, Writ Refused; Harper v. Highway Motor Freight *987Lines, Tex.Civ.App., 89 S.W.2d 448, Writ Dismissed; Weber v. Reagan, Tex.Civ.App., 91 S.W.2d 409, Writ Dismissed; Younger Bros. v. Power, Tex.Civ.App., 92 S.W.2d 1147; Gregg v. DeShong, Tex.Civ.App., 107 S.W.2d 893, Writ Dismissed; Peveto v. Smith, Tex.Civ.App., 113 S.W.2d 216, reversed in part on other grounds 134 Tex. 308, 133 S.W.2d 572; Alfono v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466, Writ Dismissed; Tyler Milk Products Co. v. Shipman, Tex.Civ.App., 129 S.W.2d 444; Gladewater Laundry & Dry Cleaners v. Newman, Tex.Civ.App., 141 S.W.2d 951, Writ Dismissed, Judg. Cor.; Richmond v. Champagne’s Bakery, Tex.Civ.App., 149 S.W.2d 304, Writ Dismissed Judg. Cor.; J. A. & E. D. Transport Co. v. Rusin, Tex.Civ.App., 202 S.W.2d 693.
This, however, is a mere rule of procedure and the presumption vanishes when positive evidence to the contrary is introduced (Houston News Co. v. Shavers, supra) and there remains nothing to submit to the jury. Harper v. Highway Motor Freight Lines and Alfono v. International Harvester Co. supra.
V. B. Byrd testified that the trip Baker was on when he was killed was being made for him personally and not for the Long Freight Line. Therefore such presumption vanished and no jury issue was raised.
The motion for rehearing is overruled.