dissenting.
I respectfully dissent.
I do not agree that our initial holding, that the evidence supported the jury’s finding that McCoy was on a special mission at the time of the accident, is in conflict with the holding of the Texas Supreme Court in Evans v. Illinois Employers Insurance of Wausau, 790 S.W.2d 302 (Tex.1990).
In my opinion, Evans is factually distinguishable from the present case in material ways. In Evans, attendance at the regular Monday morning safety meetings was specifically required by a provision in the contract, and therefore was an integral part of the job. Travel to the safety meeting the first thing every Monday morning was simply travel to work. Evans, 790 S.W.2d at 304. In the present case, no regularly scheduled meeting is involved. Rather, as a condition of employment, Deputy McCoy would go to the firing range at least twice a year to qualify with the use of firearms. I consider the distinction to be material: attendance at a firing range once every six months or so, whenever you can schedule it versus required attendance every Monday morning at 7:30 a.m. at a safety meeting in a trailer approximately 1⅜ miles from the construction job site.
Additionally, in Evans, at the time the plaintiffs were involved in the accident, they were driving to work from their homes on a Monday morning. In the present case, Deputy McCoy worked his regular shift as a bailiff in the 113th District Court, from there went to the firing range, and shortly after he left the firing range, still in his uniform, he was involved in the fatal accident.
I think the facts of this case are closer to those in Freeman v. Texas Compensation Ins. Co., 603 S.W.2d 186, 192 (Tex.1980), where the court held the plaintiff was on a special mission when he died shortly after leaving the location of a polygraph test that was arranged by his employer. I consider it relevant here that Deputy McCoy was in close proximity to the firing range location when the accident occurred, because he would not have been at the site of the accident if it were not for his visit to the firing range, a special mission required by his employer on a semi-annual basis.
I would overrule the motion for rehearing and affirm the judgment.