(dissenting).
I respectfully dissent.
The appellant Falba Jo Roberts, individually and as next friend of her minor children, and as personal representative of the Estate of her deceased husband, Roy Roberts, brought suit to recover for his death under the Texas Wrongful Death Act. She sued the Estate of Jesse Ray Hester, deceased, and Stapp Drilling Company. She contended that Jesse Ray Hester was an employee of Stapp Drilling Company and while operating a motor vehicle within the scope of his employment he was guilty of acts of negligence that proximately caused the collision and ultimate death of Roy Roberts, her deceased husband and the father of her children. Stapp Drilling Company filed a plea of privilege to be sued in the county of its residence in Bexar County, Texas.
The trial was to the court without a jury. The court overruled the plea of privilege, finding that the evidence and stipulations were sufficient to retain venue in Bee County, Texas. Stapp Drilling Company has appealed.
Among the stipulations pertinent to this appeal are the facts that plaintiff’s husband died as a result of an automobile accident that occurred on July 22, 1968 on U. S. Highway 59 approximately 2.6 miles east of Beeville in Bee County at approximately 11:15 in the morning. It was stipulated that on the occasion in question that Jesse Hester (one of the defendants) was guilty of negligence proximately causing the collision and death of plaintiff’s husband, Roy Roberts. Other stipulations included the fact that Jesse Hester (deceased) was and had been an employee of defendant Stapp Drilling Company and had been working at a job-site near Goliad, Texas.
The issue before the Court was whether or not at the time in question Jesse Hester was acting within the scope of his employment, thereby rendering defendant Stapp Drilling Company liable under the doctrine of respondeat superior.
The general rule is that in absence of special and peculiar facts and circumstances affecting the relationship of the parties and the purposes to be served, the servant in going to and from his work in an automobile acts only for his own purposes and consequently his employer is not liable for an injury occasioned while the automobile was so being used. As is the occasion which accompanies most general rules of law, there are special exceptions. One of the exceptions to this rule is known as the “Special Benefit” or “Special Errand” exception. See 8 Am.Jur.2d, Automobile and Highway Traffic, Sections 630, 634 and 635, pages 184-194 and 52 A.L.R.2d 287, et seq., and Restatement of Law of Agency. I would hold that the evidence here is sufficient to uphold the trial court’s judgment bringing this case within this exception.
The precise factual question before us has not attracted the attention of any Texas court. That is: where an employee has left work on one day, and being advised that he will not be working the next day, but is later called to work at an irregular time and is directed by his employer to use his own automobile to transport himself to a remote work-site to do a specific type of job, and in doing so negligently causes the death of the other, would such facts in this situation, bring the employee within the scope of his employment so as to make his employer liable for his negligent acts?
Whether this situation took place is a question of fact for a jury or a trier of fact to decide. In the instant case the trial court decided favorably for the plaintiff. The majority opinion has held that there was no evidence to support this finding. No one contends that the law would not *138cover this fact situation. It is only contended that the facts proved are insufficient as a matter of law to maintain a cause of action against appellant.
On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959). There were no findings of facts requested or filed by the trial court, therefore, it must be implied that the trial court found from the evidence all the necessary elements that would support its judgment.
Reviewing the evidence in its entirety both as to the direct and circumstantial evidence, and including that evidence which the trial court took judicial knowledge thereof, I would hold that Jesse Hester was acting within the course and scope of his employment at the time of the accident. The arguments given in the majority opinion to reverse and render, point only to negative inferences that can be gained from the lack of specific evidence, rather than recognizing the reasonable inferences and intendments that are required to be given by an appellate court to the evidence that will support the trial court’s judgment.
The workman in effect was told he was not to go to work on this particular day. His subsequent actions reflect that he relied upon this fact. He did not return home until late the next morning after the normal time to go to work. It had been raining the day before and he was told or it was reasonably inferred that he would not be needed. His usual work was that of a derrick hand. It can be inferred that the work he was to do on the occasion in question was different work from that which he had been doing the day before. The employer decided that he wanted to move the rig. The foreman called for the workman to go to work at 6:30 in the morning (presumably to pick him up). The workman was not there. The employer still needed him, so the employer directed the workman to get in his car and come to work anyway. The inferences here being that the employer had furnished the workman his previous transportation but since he was needed so badly that day, he was to take his own car and come to the job-site. The employer, through its foreman, instructed the workman’s wife to tell him that as soon as he came in that he was to come to the rig; that they were moving it; that they needed him to help move the rig; and that as soon as he got home he was to. come out there to Goliad in his own car. In obedience to this directive, the workman drove directly toward the rig-site when the accident happened.
I would hold that the employer’s order was unequivocal and direct. Without such an order, the workman would not have gone to work that day. This order was a special directive, an unusual order for the purpose of moving the employer’s rig. It was a specific order by the employer to the employee to go to work at an unusual hour (when he got home). The evidence and the inference gained therefrom was that he was to proceed directly to the remote rig-site in his own vehicle, to help move the rig for his employer, when the accident happened. These facts bring the workman within the exception. I would hold that the workman was pursuing this directive and conferring a special benefit on the employer in the furtherance of his master’s business at the time of the accident. Kuehmichel v. Western Union Telegraph Co. et al., 125 Minn. 74, 145 N.W. 788 (1914); Caver v. Eggerton, 157 Miss. 88, 127 So. 727 (1930); Underwood v. Mitchell, 389 S.W.2d 106 (Tex.Civ.App., Eastland 1965, no writ hist.); 52 A.L.R.2d 287, Anno. Employee driving own car — liability. See also these cases which reflect the same type of special mission as is apparent in the instant case. Eubanks v. Hughes Engineering Company, 369 S.W.2d 49 (Tex.Civ.App.—Ft. Worth 1963, writ ref’d n. r. e.) (em*139ployee returning to work with supplies.); El Paso Natural Gas Co. v. Lackey et al., 186 F.2d 155 (5th Cir. 1951) (express orders to take truck home after finishing job); Konick v. Berke, Moore Co., 355 Mass. 463, 245 N.E.2d 750 (1969) (employee directed to go to home office to get the payroll) ; Kadlecik v. L. N. Renault & Sons, Inc., 156 Pa.Super. 586, 40 A.2d 866 (1945) (employee salesman involved in accident on way home after seeing customer); cf., Consolidated Underwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128 (Tex.Com.App., 1924, opinion adopted) (mechanic “subject to call at any time” involved in accident while returning from seeing about a battery; fact that stopped for lunch prior to accident immaterial). Friend-Rowe Motor Co. et al. v. Ricci et al., 293 S.W. 851 (Tex.Civ.App.—Beaumont 1927, wr. dism.) (facilitating employer’s business by conserving time).
There was certain circumstantial evidence coupled with the direct and positive evidence together with the reasonable inferences that was sufficient to uphold the trial court’s judgment. In addition, the defendant Stapp Drilling Company as defendant and employer of Jesse Hester, presumably had superior knowledge regarding the facts and circumstances relevant to the issues at hand. Much of the evidence was peculiarly within the knowledge and control of the appellant. Its failure to produce any evidence to overcome the direct and positive evidence and the inferences to be gained therefrom, raises a strong presumption that any evidence he could have produced or his testimony, if offered, would have been unfavorable to him. San Antonio & A. P. Ry. Co. v. Blair, 184 S.W. 566 (Tex.Civ.App.—San Antonio 1916, wr. ref.) ; McCormick & Ray — Evidence, Sec. 100-103. See also the type of cases under Testimony of party or interested witness, 56 Tex.Jur.2d, Sec. 210 at p. 551.
I would affirm the judgment of the trial court.