Appellee’s Motion for Rehearing
We • have decided that we were wrong in holding that the evidence required *143submission of the issue, whether Stone was operating his automobile in the course of his employment, and that holding is withdrawn and so, in consequence, is the holding that the evidence was insufficient in fact to support the jury’s finding on that issue. Our .reasons are stated below, but first we will restate more completely and precisely some of the testimony which is summarized in the first part of our original opinion, especially matters referred to on page 5 thereof.
When the rig was running Stone was subject to call at the rig at any time during the twenty four hours of the day to do work.pertaining to the operation of the rig; and that he might be present at the rig whenever wanted, his employer had furnished him with living quarters in an automobile trailer which was kept at the rig. He had actually lived in this trailer while at the rig. This provision of quarters for Stone was made necessary, not only by the fact that Stone was subject to call but also by the fact that his home was distant, about forty miles from the rig, and that he had no telephone at home.
Because of the circumstances and the nature of his duties, Stone plainly did not have the right to leave the rig while it was running — unless, perchance, he had become vested with an authority to do so. We shall have to add this exception because in at least this one case Stone did go away from the rig while it was running. But the evidence does not limit this possible authority to any kind Of purpose or occasion. For instance, there is no evidence that Stone had been forbidden, by special order or by rule, to leave the rig while it was running except on the employer’s business, nor any that he would have been refused permission to go away except on the employer’s business. Nor does it appear that authority to leave had to be conferred in any particular way or by any particular person among Stone’s superior officers; All that can be said is what we have already said, that Stone did not have the right to leave the rig while it was running — unless, perchance, he had become vested with an authority.to do so; and we shall have to assume that Stone might have acquired this authority in various ways, as when matters pertaining to the operation of the rig might require him to leave, or when someone having the right to do so permitted him to leave or sent him away on an errand. That is‘ as definite as we can be about this matter of authority.
Further, there is no evidence that Stone had ever left the rig without authority when it was his duty to be at the rig. And the only instances of Stone’s having left the rig which the evidence shows were, first, the times when he used his automobile for his employer, and second, the times when he did go home. The testimony about Stone’s trips home before the one testified to in this case consists of the following part of Stone’s deposition which, for convenience, is repeated from our original opinion: “Q. And you had been on that job constantly for how long a period of time? A. About three months, I guess; something like that. Q. Had you been staying in that trailer house? A. Not all the-time I hadn’t. Whenever I would get the chance I would go home. Whenever they put the rig on stand-by time and the men didn’t have anything to do but clean up the rig, I would go home.” This testi■mony is made indefinite by the statement that Stone went home when he got the chance, but the jury could construe the entire statement as meaning that he had had a chance to go home only when the rig was idle and that he had done so on these occasions.
There was testimony from Norvell, the president of the defendant employer corporation, that Stone was authorized to leave the rig when his services were not needed there.
We have referred, in our original opinion, to testimony by Evans, that the rig was running when he left it on the day of the collision. Evans also testified that he and his co-employees were then working twenty-four hours a day. He did not .remember when Stone had left the rig, whether before .or after he had come on duty that day, but his testimony implies *144that the rig was running when Stone left. He said that Stone was on his way hack to the rig to perform his duties and that Stone was supposed to be back there that afternoon.
The jury were authorized to find that someone had to be at hand to perform Stone’s duties if the rig was to operate continuously, and that when Stone was absent from the rig while it was running, either on an errand or by other authority, somebody else had to take his place sooner or later, at least if he was to be absent for a long space of time. The evidence really does not show how long the rig could be kept running without the presence of someone to do Stone’s work, or what arrangements, if any, were made when Stone was away from the rig on an errand, but the evidence about his duties would have some tendency to show how necessary his presence was and how long he might be absent without replacement. In our original opinion we referred to the conflict in the evidence regarding the nature of Stone’s duties. According to Stone’s deposition, he was not a tool pusher and his main duty was to fetch tools and pieces of machinery for the rig when circumstances happened to require this. Brice, he said, was a tool pusher. However, according to the testimony of Evans, Norvell and Brice, Stone was the tool pusher for the rig and although he was expected on occasion to fetch tools and pieces of machinery for the rig, this was a minor part of his duties and he had some responsibility, in the absence of a superior officer, for the continuance of the work and some directive authority. Brice, according to these last three witnesses, was the superintendent of the field operations of the defendant Norvell Service Company. On trial, Stone testified: “I stayed down at the rig to see that the work went on down there.”
Of course, under the circumstances we have summarized, it was no more trouble to the employer to dispense with Stone’s services at the rig in order that he might do something for himself than to dispense with him while he was running some errand for the employer.
As the summary in our original opinion shows, all of the testimony about Stone’s reason for leaving the rig is that he went away in his own automobile to go to his home. The very witness on whom plaintiff must depend for evidence that the rig was running, namely, the driller Evans, said that Stone had not gone for something but had been relieved by Brice, the superintendent, and had gong home to clean up. This testimony is at page 218 of the statement of facts, and is in the following words: “Q. Do you know what time Mr. Stone had left the rig? A. I’m not sure. I believe he went in — well, I’m not sure when he went in. I know the superintendent came out and relieved him, where he could go. Q. Do you know whether or not Mr. Stone had gone for something? A. No, sir, he had gone home to clean up. Q. Were you present when he left to go home, or do you recall? A. I don’t remember whether it was before I came on that morning, or what.” Of course, this testimony is contradicted by that of Stone and Brice, and Brice, said by Evans to have relieved Stone, not only said that the rig was temporarily idle but also that he left the rig before Stone did. Nevertheless, it is not easy to discard the quoted statements of Evans when the plaintiff himself is basing an important contention on other statements of this very witness which are no more credible than the ones just quoted. However, we will abide by the conclusion, expressed on page 11 of our original opinion, that for various reasons the jury had the legal authority under the rule of Choate v. San Antonio & A. P. Ry. Co., 90 Tex. 82, at page 88, 36 S.W. 247, 37 S.W. 319; Id., 91 Tex. 406, 44 S.W. 69, and of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, to disbelieve all of the testimony about Stone’s mission, that is, his reason for leaving the rig; but this statement assumes that the trial court was authorized to submit the special issue under review to the jury, and all it means, and all that we meant by the statement in our original opinion, is that a jury has authority to decide an issue which the court was authorized to submit to them. Under the rule of decision referred to, a trial court *145must submit an issue to the jury even though the Court of Civil Appeals would have to set aside the finding which was based on the evidence requiring the submission. If an issue has to be submitted because of this rule, the jury is charged with the duty to decide this issue and so necessarily has legal authority to accept the evidence which requires submission and to discard that in conflict with it — although on appeal the Court of Civil Appeals is hound to do precisely the opposite. Concerning all of these various matters see: Turner & Clayton, Inc., v. Shackelford, Tex.Com.App., 288 S.W. 815; Houston & T. C. Ry. Co. v. Schmidt, 61 Tex. 282; O’Fiel v. Redell, Tex.Civ.App., 298 S.W. 142, affirmed, Tex.Com.App., 6 S.W.2d 92; San Antonio & A. P. R. Co. v. Bolster, Tex.Civ.App., 51 S.W. 41. It is a peculiar rule. Well, at this point we are only undertaking to say what the jury had authority to do, not what they ought to have done, with the testimony about Stone’s reason for leaving the rig, of which the statements of Evans just quoted are a part.
Nevertheless, as we have stated in the original opinion, the jury’s right to disbelieve witnesses proved nothing for the plaintiff, and we still think that for the proof required of him, the plaintiff has to depend upon some circumstances left over after the aforesaid testimony about Stone’s reason for leaving the rig has been discarded, just as if these circumstances and nothing else concerning Stone’s reason for being absent from the rig had been proved. Discussion of these circumstances makes it necessary to repeat some things already stated, but the parties are entitled to a full expression of our views.
The first of these circumstances to be considered are the following: (a) the rig is running when the collision occurs and, according to Evans, had been running twenty-four hours a day. Further, it may be implied from Evans’s testimony that the rig was running when Stone left it, although Evans did not remember when Stone left. And since we are putting aside all of the testimony about Stone’s reason for leaving, what is left is merely the fact that Stone did leave the rig while it was running, (b) When the rig is running, it is Stone’s duty to be at the rig unless he has authority to be absent. Evidence summarized above shows why, and there is no evidence that Stone had violated this duty. In fact, there is evidence that Stone was trusted by his employer to keep the record of his expense in operating his car for the employer. There is also evidence that Stone had a position of some responsibility at the rig. (c) At the time of the collision, Stone is in his automobile, proceeding toward the rig, and it is to be assumed that Stone also left the rig in this vehicle. Further, he had bought a tire at his employer’s expense while absent from the rig, and had it put on his car, and at the time of the purchase was on his way back to the rig. However, he uses this automobile at times on his employer’s business, under an agreement between them that he will do so, and the employer reimburses him for his expenses. There is a conflict in the testimony, mentioned above, as to how prominent an element of Stone’s duties this use of his automobile was.
We have to determine whether Stone was acting for his employer, and so, as we have indicated, the question to be decided may be put this way, What was Stone’s reason for leaving the rig? From the circumstances we have set out, the jury might have been justified in finding that since Stone did leave the rig, he had authority to do that, and (just as everybody said, including Evans) that he was returning to the rig at the time of the collision. But what was the nature of his authority? Was the authority one to do something for his employer? It certainly could have been, but at bottom there is absolutely nothing to show that it was except Stone’s going away, and since the rig is running twenty-four hours a day there is no obvious and immediate connection between the rig itself and Stone’s absence. For what would Stone have gone, or what would Stone have done, for the rig while the rig kept on running ? On the other hand, was the authority one to do something for himself? This, too, was pos*146sible, just as much so as an errand for the employer, for Stone had means, opportunity and possible motive for such a trip. The road he traveled led to his home. Evans’s inability to fix the time of Stone’s departure left open the possibility of sufficient time for a. trip home, and the employer, as we have stated, could have dispensed with his services for a trip home as easily as for a trip concerning the employer’s business. The possible motive for Stone’s going home was the fact that he had been living down at the rig in an automobile trailer for about three months and so might well want to go home for the very reason that Evans gave, to clean up. And he was shown to have been in Hamshire, not far from the town where his own home was. We have not taken into consideration at this point Stone’s testimony that he left the rig on the day before the collision, because an overnight trip away from the rig seems more consistent with his going to his home than with a mission for his employer. There is the purchase of the tire, but this is either to be referred to the agreement to reimburse, impliedly or by reason of Stone’s and Nor-vell’s testimony that it actually was, or else, on the circumstances we are now considering, it is only an isolated event which is not accounted for and which is therefore meaningless, and this would be the case if we discard the evidence of an agreement to reimburse. We get nothing out of the fact that Stone sometimes used his car for his employer; the car was his own property, and Stone also used it for his own purposes.
The circumstances only make the question, they do not answer it. The facts that an employee, trusted in a financial matter and having a position at the rig of some responsibility, not shown to have deserted his post at the rig in the past when he was supposed to be there, does get up and go away from the rig in his own automobile at a time when he would ordinarily have been under a duty to remain, may indicate that he had authority to leave, but I do not see how anybody can tell from these facts what Stone’s reason was for leaving. We turn, therefore, to the following matters in addition which, as we read the evidence, complete the list of circumstances available to the plaintiff as possible support for the finding attacked. These additional circumstances are: — While the rig had been in place, before the events involved in this suit occurred, that is, during a period of about three months, Stone had left the rig on missions for his employer and he said that he had also left it, when it was idle, to go to his home. There is no evidence that he had left it during this period for any other reason.
These items suggest to us only these possibilities : The first is exemplified by Western Union Tel. Co. v. Gorman, 237 Ala. 146, 185 So. 743, where the defendant company had put in force a fixed rule of practice that its messengers wear uniforms only when on duty, and the boy who collided with the plaintiff did have on a uniform. The element of rule was also involved in Western Union Telegraph Co. v. Brown, Tex.Civ.App., 297 S.W. 267. However, as we have stated above, the evidence under review does not show that Stone had been forbidden, by special order or by rule, to leave the rig while it was running except on the employer’s business, nor does it show that authority to leave would have been denied Stone except to run an errand for his employer. The evidence goes no further than to show in a general way what we already stated, namely, that when the rig is running, it is Stone’s duty to be at the rig unless he is authorized to be absent. This is the only evidence which might be likened to the rules or practices considered in the two cases cited, but it is not equivalent to such rules or practices because the matter of authority is left open and undetermined. The rules or practices considered in the cases cited left nothing open. The inference from the evidence before us does not go as far as did the inference from the rules mentioned. So, decisions involving positive rules or fixed practices are not in point on the facts, although the two opinions cited do indicate the nature of the circumstantial proof which ought to be made to support, with legal certainty, a finding by a jury like that under review.
*147The next of the possibilities suggested by the few circumstances last mentioned is an application of the rule of decision which makes past custom and habit evidence of conduct. McCormick & Ray, in their Texas Law of Evidence, make this statement: “The habit or custom of a person in doing a particular act often has probative value in determining his conduct on an occasion in question. Of course this does not mean that everything which is loosely referred to as habit or custom is receivable in evidence. The habit or custom should be of sufficient regularity to render probable that it would be carried out ⅛ most instances. This will depend to a large extent upon the circumstances of the particular case.” Sec. 684, p. 880. Were Stone’s' acts in leaving the rig, before the occurrence of the incidents in suit, so regular, uniform and certain in occurrence and nature within the meaning of this rule as to show that Stone followed a habit or custom of never leaving the rig while it was running except on a mission for his employer? Well, these criticisms have to be made of the evidence about these acts: First, the period of time involved is short, only about three months. Second, there is no affirmative testimony that Stone had never left the rig while it was running except on the employer’s business; the record simply fails to show that he had and the conclusion that he had not is only an inference from rather indefinite testimony which referred to the matter of chance. Third; the evidence does not show how frequently Stone had gone on missions for his employer — such evidence seems unavailable —and such of the evidence as we have found shows that these missions occurred at irregular intervals, sometimes after long intervals, and seem to have been caused by circumstances of the moment. This evidence is the following: On deposition Stone said: “I turned in my own statement about the use of the car. Q. About what did it run per month? A. I couldn’t tell you. It wouldn’t make an average all the way through. Sometimes I didn’t have to use it for two or three weeks.” (S.F. 137.) Nor-vell, the defendant employer’s president, said of Stone’s use of the car: “I don’t know how often he uses it. I don’t have any way of saying whether it was frequently or seldom. He kept track of that himself.” (S.F. 226.) Fourth, the evidence does not show how frequently or at what intervals the rig had been idle, but Stone said that he had gone home when he had the chance, which indicates that chance was involved. I have kept this item in consideration because' it helps the plaintiff more than the defendant. With all of these matters in mind, it seems to us that "the evidence about Stone’s acts in leaving the rig-leave open the question, whether all of them were simply fortuitous, not amounting to a habit or custom within the meaning of the rule quoted.
We may sum up about as.follows: Construing the evidence most favorably to the plaintiff and disregarding the affirmative testimony about Stone’s reason for leaving the rig, the essence of all of the circumstances we have been discussing comes down to no more than this: Stone, an employee trusted by his employer in a financial matter and having a position of some responsibility at the rig, not shown to have left his post at the rig when his duty required him to be there, nevertheless does leave the rig at a time when it is running .twenty-four hours a day so that he needs authority to leave, and goes away in his own automobile, but the time when he leaves and the period of time for which he is to be absent are not proved. (We have discarded the testimony of an overnight trip). There is no affirmative testimony as to what his destination was or what his reason for leaving was. During the period of about three months in which the rig had been in operation, he had made trips in this automobile for his employer and he had gone home, at least on occasions when the rig was idle, but how many and how frequent these trips were, and at what intervals these trips were taken was not proved. That Stone had authority to leave is indicated by what we have just said, but the nature and source of this authority, whether circumstances, order, or permission is not proved. Some of these matters do suggest that Stone’s trip had a connection of some kind with the employer’s business, although what this connection was *148is not shown; the circumstances referred to are, the nature of Stone’s position, the fact that the rig was running, and Stone’s statement on deposition that he had gone home when the rig was on stand-by time. And this suggestion constitutes the farthest reach of the circumstantial evidence in plaintiff’s favor. On the other hand, numerous other matters have to be considered with those creating this suggestion and these work ágáinst the suggestion and tend to defeat it. The gaps in the evidence and the indefinite character of evidence tend to make the suggestion of a connection between the trip and the employer’s business a very general and indefinite one. If the rig kept on running, there is no obvious immediate connection between Stone’s absence and the operation of the rig. And if Stone had authority to leave the rig, he plainly was not heeded there and he traveled a road which led to his home. He was shown to be at a place not far from his home and he had been living in an automobile trailer, in all reasonable probability in the open air, for about three months, except for an indefinite number of trips home now and then. The question is, what was Stone’s reason for leaving the rig? Was the trip for his employer or for himself? or for both his employer and himself? or for somebody else ? Our conclusion is that nobody could tell, with legal certainty, what Stone’s reason was. The suggestion that the trip had some connection with the employer’s business appears to be, on critical examination, nothing more than the scintilla or suspicion discussed in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. See, also: Van Landingham v. Singer Sewing Machine Co., 207 N.C. 355, 177 S.E. 126.
We see no basis for a presumption based on the collection of circumstances we have been discussing.
In consequence, we hold that there was no evidence to support the finding that at the time of the collision Stone was operating his automobile in the course of his employment, and we therefore now sustain Point 1. As we stated at the beginning of this opinion, we withdraw our holding sustaining Point 2, which invokes this court’s jurisdiction to determine a question of fact. We have, in the past, decided the Point of Error assigning insufficiency in fact as well as the Point assigning no evidence, but the present case seems to be one in which Point 2 ought not to be decided except on a correct understanding of the rules of law governing the case. Of course, this situation would exist if only Point 2 had been filed, but since an appeal lies from our decision of Point 1 on which all questions of law can be determined, we have decided that we ought not to express any opinion regarding Point 2 and we do not. Of course, it may be that a particular error of law would not affect a decision of Point 2.
However, we remain of the opinion that Point 2 is sufficient to invoke this court’s jurisdiction to determine a question of fact; and we hold also that it is supported by paragraph 5 of the amended motion for new trial filed by defendant Norvell Service Company. In said paragraph 5, the criticisms of the evidence following the statement that the finding is “so against the overwhelming weight and preponderance of the evidence as to be clearly wrong” are only reasons given for this statement. The words quoted are like those in Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, at page 358, and ought to be enough to convey notice that counsel intended to raise a question of fact.
Except as modified by this opinion, holdings made on our original opinion are affirmed. Regarding the purchase of the tire see: Temple v. Stafford, 227 N.C. 630, 43 S.E.2d 845, by the Supreme Court of North Carolina; Greenwood v. Kier, Colo., 243 P.2d 417, at page 424 (Headnote 9). To repeat, the automobile being driven by Stone did belong to him. Plaintiff attacks this conclusion in his motion, but he paints to no evidence that the car belonged to anybody else and he does not say who owns the car if Stone does not. We have reviewed the evidence but as we read it, no question about the ownership of the car was made at the trial; everybody who had anything to say on the subject said that the car belonged to Stone, and the parties at least acted as if the matter were not disputed. There is a *149great deal of evidence other than Stone’s own testimony that Stone owned the car he was driving. Thus Lewing, an attendant at the station where Stone bought the tire said that he serviced “Mr. Stone’s car” and that Stone had been in the station quite a few times. (S.F. 186-187.) Evans, the driller, said, in substance, that the car belonged to Stone. (S.F. 210; 213.) Norvell, the defendant’s president, said that Stone had a Chevrolet automobile which belonged to him, that is, Stone, and that Stone sometimes used this vehicle for the employer. (S.F. 226-227). Plaintiff’s witnesses and the photographs in the statement of facts identify the vehicle driven by Stone as a Chevrolet. Rollins, the storekeeper, said that Stone drove his, that is, Stone’s automobile up to the witness’s store. (S.F. 277). A statement of Mrs. Stone’s, considered with the question asked her, implies that the car was her husband’s. (S.F. 282). Brice, the defendant’s superintendent, said that Stone “had his own personal car there”, meaning, at the rig (S.F. 284) and that he knew it belonged to Stone because Stone “owned his car before he taken the job.” (S.F. 286). The appearance of the car pictured in the photographs is that of a two door Chevrolet sedan, a standard passenger vehicle, and no insignia such as one often sees no commercial vehicles is shown and none was testified to. The plaintiff made no effort to contradict this evidence, although he could easily have done so and with cogent evidence had he so desired, and it is to be noted here that the cause has been tried three times.
The motion for rehearing is overruled.