Van Cleave v. Robertson Tank Lines, Inc.

On Motion for Rehearing

In our original opinion in this case we held that the testimony of . an interested witness to facts showing that he was on a mission of his own not related to his employment was. sufficient to rebut the *793presumption that he was acting in the course and scope of his employment, and was acting to further his master’s business, such presumption having been raised by admissions and evidence that the witness was employed by appellee as a truck driver and drove a truck owned by appellee to the place of the collision. We also held that there was no evidence that the driver was acting to further his master’s business at the time he parked the truck on the side of the highway. In reaching these conclusions we were relying on Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763 (1940), where the court said:

“Proof that the truck was registered in the name of Empire Gas & Fuel Company raised the presumption that it was owned by that company, and if evidence had shown that Warren Angel, the driver of the truck, was in the employ of the Empire Company, the further presumption would have been raised that such driver was acting within the scope of his employment. Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057, 1058. There is no evidence in the record that Warren Angel was ever employed by the Empire Company. We need not determine in this case whether, from the operation of the truck on the highway under registration in the name of Empire Gas & Fuel Company, the presumption arises that the driver was an employee of that company, for, on the same principle that makes registration evidence, prima facie, of ownership, it seems that the issuance of the permit in the name of Empire Gas & Fuel Company to transport the ditching machine in the truck raised the presumption that it was being transported for that company.
“It is settled in this state, and by the weight of authority elsewhere, that such presumption is not evidence but rather a rule of procedure or an ‘administrative assumption’ which ‘vanishes’ or is ‘put to flight’ when positive evidence to the contrary is introduced. Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106; * * *
“The presumption is a true presumption, which has been defined as ‘a rule of law laid down by the courts which attaches to facts certain procedural consequences’. McCormick & Ray’s Texas Law of Evidence, Sec. 32, p. 48. It places on the party against whom it operates the burden of producing evidence. It is not evidence and when met by rebutting proof is not to be weighed by the jury or treated by the jury as evidence in arriving at a verdict. McCormick & Ray’s Texas Law of Evidence, pp. 51, 58, Sections 34, 37; 20 Amer.Jur. pp. 170, 171, Sec. 166.”

The decision in that case, however, has been clarified by the opinion of the court in Southland Life Insurance Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854 (Tex.1942), where the court said:

“We are not in accord with the holding of the case of National Aid Life Ass’n v. Driskill, Tex.Civ.App., 138 S.W.2d 238, cited by defendant, to the effect that it is the function of the court (rather than the trier of the facts), when there are opposing inferences (each supported by substantial probative evidence), to determine which inference is more reasonable or probable. We hold that an inference established prima facie (as in the present case) is overcome, together with the evidentiary facts tending to establish it, only when the evidence tending to support the contrary inference is conclusive, or so clear, positive and disinterested that it would be unreasonable not to give effect to it as conclusive. Authorities cited supra; also Empire Gas & Fuel Co. v. Muegge, supra; Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 136 S.W.2d 207; East Texas Fire Ins. Co. v. Perkey, 89 Tex. 604, 35 S.W. 1050; Western Union Tel Co. v. McDavid, 103 Tex. 601, 132 S.W. 115; American Central Ins. Co. v. Heath, 29 Tex.Civ.App. 445, 69 S.W. 235. As stated tersely in the Stanolind Oil case *794[134 Tex. 332, 136 S.W.2d 209], ‘prima facie evidence and presumptions of fact disappear when the true facts are conclusively shown by other evidence’; or, as stated in the Empire Gas case opinion [135 Tex. 520, 143 S.W.2d 767], after it is shown the opposing evidence was clear, positive and uncontradicted, ‘it is settled in this state, and by the weight of authority elsewhere, that such presumption is * * * an “administrative assumption” which “vanishes” * * * when positive evidence to the contrary is introduced.’ In other words, presumptions, when controverted by facts, disappear, as such, and cannot be weighed as evidence against such facts.” (emphasis added)

In that case the court also stated:

“It is not contended by the company that the evidence of the receipt of the letter adduced by plaintiff is not substantial or that it does not tend to support a fact finding that it received the letter within the grace period. The company’s contention, reduced to proposition form as substantially stated in the application for writ of error, is that the ‘presumption of fact that the mailed letter was received’ vanished when its evidence tending to show the letter was not received, was introduced. Such is not the majority rule, and is certainly not the rule in this State. Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763; Langlitz v. American Nat. Ins. Co., Tex.Civ.App., 146 S.W.2d 484, writ dismissed; McCormick & Ray, pp. 58-9, sec. 37, and other cases above cited.
“We agree with the company’s contention that a presumption, as such, is not evidence and that it vanished as such in view of the opposing evidence; but we do not agree that the evidentiary facts upon which it was established, could no longer be considered by the trier of the facts. Wigmore on Evidence, 2d Ed., sec. 2491.
“American Jurisprudence, Vol. 20, sec. 166, states the general rule thus: ‘The facts which gave rise to a presumption, as distinguished from the presumption itself, are evidentiary; those facts, when established by evidence, remain in the record and may be properly considered by the jury as they tend to sustain a finding of fact presumed, no matter what other facts the record may reveal. It is not the presumption or inference that the jury considers in such cases, but only the facts and whatever inferences flow therefrom.’-
“The prima facie case of due receipt of the letter made out by plaintiff in the present case is not conclusively rebutted by the company’s evidence tending to establish it was not received; nor is such evidence so clear, positive and disinterested as to overcome (other than as a rule of law) the presumption of fact in the insured’s favor.”

On reexamination of the case we conclude that we were correct in holding that the testimony of the driver constituted “substantial evidence”, and was sufficient to rebut the presumption, but that we were in error in disregarding the facts from which the presumption arose as a permissible basis for an inference that the driver was acting in the furtherance of his master’s business at the time he parked the truck. Re Estate of Woods, 374 Mich. 278, 132 N.W.2d 35, 5 A.L.R.3d 1; Anno. 5 A.L.R.3d, Presumption — Controverting Evidence, p. 22 et seq. The trial court erred in disregarding the answer of the jury to Special Issue No. 3, since there was evidence supporting the answer returned.

After parking the truck the driver.embarked on a mission of his own which ended when he returned to the truck and started the truck for the purpose of building up pressure. Southwest Dairy Products Co. v. De Frates, 132 Tex. 556, 125 S.W.2d 282 (1939), is not applicable to this case under the facts as found by the jury. The court erred in disregarding the answer made by the jury to Special Issue No. 8.

*795The motion for rehearing is granted. The judgment of the trial court is reversed and the case is remanded to the trial court with instructions to enter a judgment on the verdict of the jury.