OPINION
LANGDON, Justice.The appellant’s motion for rehearing is granted, and our opinion of January 31, 1969, is hereby set aside and the following substituted in lieu thereof as the opinion of the Court.
The plaintiff, C. M. Stover, sued Don Bowden and Concrete Sawing and Sealing Corporation for personal injuries sustained by him when he was struck by a pickup truck driven by Billy Jackson, who, it was alleged, was acting within the course and scope of his employment for the defendants. (There were other defendants originally not necessary to mention herein.)
The defendants filed motion for summary judgment based on their contention that Billy Jackson was not in the scope of employment for the defendants on the occasion in question but was engaged on a personal mission of his own. This motion was supported by affidavit of Billy Jackson, the driver, and a deposition by Clayton J. Cooper, who is a business partner and brother-in-law of defendant Bowden.
The plaintiff resisted the motion for summary judgment by affidavits and by various items of documentary evidence.
The motion was granted and summary judgment entered for defendant; hence this appeal.
Had plaintiff moved for summary judgment the motion would have been denied because the court would, for summary judgment purposes, have to accept the testimony of defendants’ two witnesses that the driver was on a personal mission. Or had the case been tried on the merits with the fact finder believing defendants’ witnesses, judgment for defendants would have been required.
However, since the defendants moved for summary judgment the plaintiff did not have to prove anything. He merely had to offer enough evidence to show that a probable issue of material fact existed.
This placed the burden on defendants in the summary judgment proceedings to prove that, as a matter of law, the driver was on a personal mission.
*424It failed to meet this burden because it had to rely upon the affidavits of the two interested witnesses. For summary judgment purposes it must be assumed that a fact finder would disbelieve the two interested witnesses.
Since the defendant failed to prove, as a matter of law, that the driver was on a personal mission, the evidence must all be regarded in the light most favorable to plaintiff to determine whether a probable issue was raised as to the driver’s being in the scope of his employment when the accident occurred.
The affidavits of plaintiff were sufficient to raise such an issue.
While the affidavits and other proofs submitted by plaintiff contained much direct and circumstantial evidence supporting his contention that Jackson was in fact working in the course of his employment, we think the following brief summary is sufficient to show that plaintiff raised the issue of scope of employment:
It was undisputed that Jackson was a regular employee of defendants. By affidavits plaintiff established, for summary judgment purposes, that at the time and on the occasion Jackson had on the day in question commenced his work for defendants ; that part of his duties included running errands for the defendants in. a truck; the truck he was operating had been used in the business of defendants both in the past and on the morning of the collision; once the work day had begun, employees of defendants were not free to come and go as they chose; Jackson was seen by other employees coming from the restricted work area immediately before the collision occurred.
In our opinion the brief summary above, with permissible inferences, is sufficient to show that the fact issue of scope of employment was raised by the plaintiff.
To grant the summary judgment the court had to pass on the credibility of the witnesses and the weight to be given their testimony. This is improper in a summary proceeding.
The two cases relied upon by defendants, i. e., Hudiburgh v. Pavlic, Tex.Civ.App., 274 S.W.2d 94, and Mitchell v. Ellis, Tex. Civ.App., 374 S.W.2d 333, do not require affirmance of the judgment. The law announced in both cases supports the plaintiff’s position since the affidavits by plaintiff meet the requirements specified in those cases.
By facts and circumstances the plaintiff has discredited the testimony of the interested witnesses to the effect that the driver had not started to work and that he was on a personal mission.
By facts and circumstances the plaintiff raised, for summary judgment proceedings, issues as to whether defendants’ driver was working in the course and scope of his employment when the accident occurred.
The judgment is reversed and the case remanded for a trial on the merits.
MASSEY, C. J., dissents.