Texas Power & Light Co. v. Evans

On Rehearing.

Appellant’s motion for rehearing again raises the sufficiency of the evidence to support the verdict.

As stated in our original opinion, this, under the circumstances here, was a controverted jury issue. We find the clearest statement of the rule in an opinion by the then Chief Justice Cardozo of the Court of Appeals of New York in Marks’ Dependents v. Gray et al., 251 N.Y. 90, 167 N.E. 181, 183, which was cited with approval by this Court in McKim v. Commercial Standard Ins. Co., 179 S.W.2d 357, writ refused. The test in the Marks case was stated as follows: “The test in brief is" this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Clawson v. Pierce-Arrow Motor Co., 231 N.Y. 273, 131 N.E. 914. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

The motion for rehearing is overruled.