concurring.
I concur in the holding of the majority opinion, which affirms the summary judgment as to appellees, Saeilo Motors, but reverses the judgment and remands the cause as to Time Arts, World Products, and World Communications.
I agree with the majority’s decision that the appellees failed to establish, as a matter of law, the absence of appellants’ asserted cause of action based upon the theory of negligent entrustment. But I disagree with the majority’s conclusion that the appellees established, as a matter of law, that the driver, Alex Murphy, was not acting in the course and scope of his employment at the time of the accident.
The majority opinion accurately sets forth the appellees’ burden of proof in the summary judgment proceeding. As the majority opinion states, the appellees had the burden of producing summary judgment evidence that conclusively proved Murphy was not acting in the course and scope of his employment at the time of the accident. In reviewing the summary judgment evidence, the appellate court is required to consider the record in the light most favorable to the appellants and indulge every reasonable inference in favor of their version of the facts.
The summary judgment proof reflects that Alex Murphy had operated a business-owned vehicle on a number of occasions, and that he used the vehicle in connection with his employment activities. He was learning how to drive, and other employees of the business had given him driving les*401sons during business hours. On the date of the accident, Murphy and two employees were driving the automobile to have dinner, intending to return to work thereafter. It is undisputed that the accident happened during regular business hours.
In my opinion, the appellees did not meet their burden of showing the absence of a genuine issue of material fact as to Murphy’s use of the vehicle in furtherance of the business. The fact that Murphy was driving a business vehicle during working hours is prima facia evidence that he was engaged in a business purpose. See Railway Express Agency, Inc. v. Robinson, 162 S.W.2d 984, 986 (Tex.Civ.App.—Waco 1942, writ ref'd w.o.m.). Although there is summary judgment evidence that tends to rebut the presumption of a business purpose, the appellant’s circumstantial proof, considered in its entirety, raise a fact question as to whether he was driving within the course and scope of his employment. Compare, Houston News Co. v. Shavers, 64 S.W.2d 384, 386 (Tex.Civ.App.—Waco 1933, writ ref’d), and Longoria v. Texaco, Inc., 649 S.W.2d 332 (Tex.Civ.App.—Corpus Christi 1983, no writ) (where the evidence rebutting the presumption was so clear and conclusive that it established the non-business purpose as a matter of law).
The majority recognizes that an employee may act within the scope of his employment duties if his acts constitute a mingling of personal and business interests. See Josey-Miller Co. v. Sheppard, 357 S.W.2d 488, 489 (Tex.Civ.App.—Beaumont 1962, no writ). In my opinion, the summary judgment record shows that such a factual question is presented here.
The majority points to the affidavit of appellees’ manager, Colaneri, to support the legal conclusion that Murphy and his co-employees were on their “own time” and were not acting in furtherance of company business when they went to dinner. In my opinion, the affidavit simply states the manager’s conclusion on an ultimate fact, which is placed in issue by other testimony in the record. The manager’s affidavit does not conclusively negate the factual assertion that Murphy was mingling his personal interests with business interests when the accident occured.
I would hold that the appellees failed to establish, as a matter of law, that Murphy was not acting in the course and scope of his employment at the time of the accident.