On Second Motion for Rehearing.
On second motion for rehearing, appellee contends that our action in reversing and remanding this case on the ground that the evidence was not sufficient to-support the jury finding that ap-pellee was in the course of her employment at the time of her injury is error because the question of the insufficiency of the evidence was not raised by appellant’s brief and is, therefore, not before this court.
An examination of appellant’s points indicates that the question of the sufficiency of the evidence was not raised. All of appellant’s points which are directed toward the evidence complain that there was no evidence that appellee’s incapacity arose out of or within the course of her employment but that...the evidence is conclusive that it-resulted from “horse’ play or fooling” in which appellee took part. Since the question of- the' insufficiency of the' evidence was not raised, we are not at liberty ■to pass on'that question and withdraw so much of theo’riginal opinion as dealt therewith. Liberty Film Lines, Inc., v. Porter, 136 Tex. 49, 146 S.W.2d 982 (Sup.Ct.); Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, (Sup.Ct.), and cases there cited.
As heretofore indicated, we are of the opinion that there- was some evidence that appellee did not willingly and voluntarily participate’ in’ ■ the horse play of Bryant when h'e told her to get into the extractor. She tebtified thát she “didn’t know what he meant.” The -effect of ’this statement, considered in its -most favorable light to appellee, wás that she did not know he was engaging in horse play or at least that her understanding of the fact was so indefini-nite that it could not be said that she willingly and voluntarily engaged therein.
Appellant contends, however, that Jenna Lee Patterson’s own testimony to the effect that “I had an idea that, he was just playing with me * * * • cutting up * * * or fooling” conclusively established that she .took part in the horse-play when she *909got into the extractor. Such testimony would be conclusive against appellee except for her youth and other facts and circumstances in the case which indicate an uncertainty on her part as to Bryant’s purpose in giving her the order in question. She was employed by the hotel corporation. She was at their place of business where "she performed the duties required of her. Bryant was her boss. She' was obliged to follow his instructions in "anything pertaining to her work." She has testified concerning the order that he gave her that she “didn’t know what he meant.” Bryant himself denied any. knowledge of either the horse play or anything in connection therewith. The testimony of .appellant, when considered in the light of all the circumstances, is such that in our opinion, it cannot be said, as a matter of law, that appellee willingly and voluntarily engaged in the horse play.
Since there is evidence that appellee did not engage in the horse play and since her testimony to the effect that she had án" idea that Bryant was “fooling” is not, under the circumstances, conclusive that she did willingly engage in the horse play, appellant’s points concerning the "evidence are not well taken and we are of the opinion that no error of the trial court is presented for our consideration.
For’ the reasons stated, the judgment of the trial court is affirmed.