dissents.
I respectfully dissent. I would reverse and remand this case for a trial on its merits.
The District Court could grant defendant’s motion for summary judgment only after finding as a matter of law that defendant was acting in the course and scope of his employment with Hardin County. The deposition testimony shows clearly, or, at least, raises a question of fact as to *420defendant’s course and scope of employment at the time of this attack.
Tex.Rev.Civ.Stat.Ann. art. 8306 § 3 (1967), provides that an .employee has no right of action against a fellow employee for damages for personal injuries. However, for that statutory provision to have application, the proof would have to show the person inflicting the injury was acting in the course and scope of his employment at the time. See McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964); and Ward v. Wright, 490 S.W.2d 223 (Tex.Civ.App.—Fort Worth 1973, no writ).
In the compensation case the claimant had the burden of proving that he, the plaintiff (not the defendant in the case before us), was injured while acting in the course and scope of his employment. Under Tex.Rev.Civ.Stat.Ann. art. 8306 § 1(2) (1967), he had to prove the third person (defendant) was motivated to injure plaintiff because of something connected with plaintiff’s employment. However, proving defendant’s motive in the compensation case and defendant’s course of employment in the damage suit are two separate and distinct issues.
The certified copy of the Industrial Accident Board file is a part of our record and does not show defendant’s reason for assaulting plaintiff. Such record also does not show defendant was acting in the course of his employment at the time of this assault.
Plaintiff should be given his day in court to establish, if he can that defendant was not acting in the course of his employment with Hardin County, at the time of this assault.