MASSEY, Chief Justice.
Suit was for damages resulting from a collision between defendant’s truck, driven by an employee, and plaintiffs’ automobile. The verdict of the jury acquitted plaintiffs of all negligence and convicted the driver of defendant’s truck of negligence which was a proximate cause. Very substantial damages for personal injuries and death and property damage were found in plaintiffs’ behalf. Furthermore, the jury found that at the time of the collision the driver of defendant’s truck was its agent, servant and employee, acting within the scope and course of his employment.
The defendant filed a motion for judgment non obstante veredicto on the ground that as a matter of law the servant who was driving the defendant’s truck at time of the collision was outside the scope and course of his employment and that the defendant, his master, could not be held liable under the doctrine of respondeat superior. The trial court entered judgment for the defendant in accord with the motion and the plaintiffs have appealed.
Judgment affirmed.
[869]*869The parties will be denominated as in the trial court, with defendant’s employee referred to as the servant and the defendant sometime referred to as the master.
' Defendant was engaged in the trucking business, with its principal location being at Wichita Falls, Texas. Its servant was employed as a truck driver. His duties were principally in and around the City of Wichita Falls, though infrequently he made trips by truck from said City to various other places in the State of Texas. On the date of the collision in question, he was directed to haul a load of used telephone poles from Wichita Falls to Springtown, Texas. Under standard instructions, previously given the servant, he should have made his delivery and returned to Wichita Falls by the nearest route. Under usage and custom he was expected to take “time out” at mealtime to eat. He was not supposed to drink any alcoholic beverage while out with the truck.
In making the trip from Wichita Falls to Springtown, the servant necessarily traveled in a generally southern direction for approximately 60 miles to Jacksboro, Texas, thence in an easterly and southerly direction to Springtown, an additional 33 miles. If a person were traveling from Jacksboro to Fort Worth, Texas, he would travel this same 33 miles to Springtown, thence in a southerly and easterly direction into Fort Worth, traveling 10 miles from Springtown in order to get to Azle, and traveling 17 miles from Azle in order to get to downtown Fort Worth. This route is known as U. S. Highway 281 — State Highway 199 between Fort Worth and Wichita Falls. Its total length is 120 miles. Another route between Fort Worth and Wichita Falls is known as U. S. Highway 287, which leaves Fort Worth going north on North Main Street, via Decatur and Bowie, Texas, and into Wichita .Falls. Its total length is approximately 115 miles. U. S. Highway 287 is east of the route through Jacksboro.
Springtown is in what is known as a “dry” county. Beer is not available as a beverage in Springtown. Beer is available in Azle. After defendant's servant had unloaded the telephone poles at Springtown he decided to drive to Azle in order to' drink a bottle of beer. The evidence raises the inference that he and his helper on the truck also intended to eat a meal at Azle, the time for the evening meal having arrived, but in any event they did not eat at Azle. They drove from Springtown to-Azle and the defendant’s servant and his helper did each drink one-bottle of beer,, but due to an impending difficulty with another patron of the establishment they decided to leave. In a discussion held between the defendant’s servant and his helper at the time, it was decided to return to Wichita Falls by a route which would take them into the city limits of the City of Fort Worth to 28th Street, thence in an easterly direction over to North Main Street and Highway 287, and thence back to Wichita Falls. They also intended to have their evening meal (along with another beer) at a point along this route.
The evidence in the record showed that the defendant’s servant labored under the mistaken opinion that the distance from Azle to Wichita Falls via the route so-planned was about the same as the distance would have been had he driven back via Springtown and Jacksboro. As a matter of fact, it would have been between 15 and 25 miles further. Defendant’s servant testified that at the time he determined on it he believed that it would be very little further, if any, by such route than to return via Jacksboro.
The servant, with his helper, proceeded to drive to Fort Worth. He intended to make a left turn at 28th Street, but when" they reached the 28th Street intersection he failed to get over into the left-turn lane through an error of judgment and therefore was compelled to continue south on State Highway 199. After having done so, he did not attempt to turn around and return to the intersection and the route previously determined upon. There is testimony in th.e record that he stated to his helper that [870]*870he knew another “cut-off” (presumably a way to get over to North Main Street), but the record is silent about where this actually was, or was believed to be. The record does show that the servant continued to drive in the direction of downtown Fort Worth until he reached the intersection of 12th Street in Fort Worth where the collision occurred. There is a signal light at said intersection, but there is no evidence that it was intended to make a left turn thereat — indeed the evidence shows an approach to the intersection in the outer or right-hand lane, from which no left turn would ordinarily be expected to be -made, when the brakes on the truck failed immediately before the moment of the collision.
In Texas the law is established to the effect that when a servant has completed the purpose for which he forsook his master’s business and is returning to the area within the -space-limits encompassing the duties of employment he is not to be considered as having resumed such duties. Where the facts unquestionably demonstrate either that the servant has completely departed from his work to accomplish some purpose of his own not connected with his employment, or that after such a departure he has not actually reengaged in his master’s business, he is outside the scope of his employment, and as a matter of law in the field of torts there is no relationship of respondeat superior existent between the parties. Southwest Dairy Products Co. v. De Frates, 1939, 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854, and cases cited. See extensive annotations in 22 A.L. R. 1397; 45 A.L.R. 477 ; 68 A.L.R. 1051; 80 A.L.R. 725, and 122 A.L.R. 858.
Under the circumstances of the instant case, we have a situation where the servant forsook the master’s business when he left Springtown and drove in the direction of Azle and Fort Worth. Although resisting any inference that the servant had .departed the space-limits of his employment when he went to Azle, plaintiffs contend that if the servant be properly considered as having done - so, neverthless he should be considered as having actually reengaged in his master’s business because of his actions coupled with his state of mind. At least, it is the plaintiffs’ contention, the question of agency became one of fact for the determination of the jury.
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MASSEY, Chief Justice.
Suit was for damages resulting from a collision between defendant’s truck, driven by an employee, and plaintiffs’ automobile. The verdict of the jury acquitted plaintiffs of all negligence and convicted the driver of defendant’s truck of negligence which was a proximate cause. Very substantial damages for personal injuries and death and property damage were found in plaintiffs’ behalf. Furthermore, the jury found that at the time of the collision the driver of defendant’s truck was its agent, servant and employee, acting within the scope and course of his employment.
The defendant filed a motion for judgment non obstante veredicto on the ground that as a matter of law the servant who was driving the defendant’s truck at time of the collision was outside the scope and course of his employment and that the defendant, his master, could not be held liable under the doctrine of respondeat superior. The trial court entered judgment for the defendant in accord with the motion and the plaintiffs have appealed.
Judgment affirmed.
[869]*869The parties will be denominated as in the trial court, with defendant’s employee referred to as the servant and the defendant sometime referred to as the master.
' Defendant was engaged in the trucking business, with its principal location being at Wichita Falls, Texas. Its servant was employed as a truck driver. His duties were principally in and around the City of Wichita Falls, though infrequently he made trips by truck from said City to various other places in the State of Texas. On the date of the collision in question, he was directed to haul a load of used telephone poles from Wichita Falls to Springtown, Texas. Under standard instructions, previously given the servant, he should have made his delivery and returned to Wichita Falls by the nearest route. Under usage and custom he was expected to take “time out” at mealtime to eat. He was not supposed to drink any alcoholic beverage while out with the truck.
In making the trip from Wichita Falls to Springtown, the servant necessarily traveled in a generally southern direction for approximately 60 miles to Jacksboro, Texas, thence in an easterly and southerly direction to Springtown, an additional 33 miles. If a person were traveling from Jacksboro to Fort Worth, Texas, he would travel this same 33 miles to Springtown, thence in a southerly and easterly direction into Fort Worth, traveling 10 miles from Springtown in order to get to Azle, and traveling 17 miles from Azle in order to get to downtown Fort Worth. This route is known as U. S. Highway 281 — State Highway 199 between Fort Worth and Wichita Falls. Its total length is 120 miles. Another route between Fort Worth and Wichita Falls is known as U. S. Highway 287, which leaves Fort Worth going north on North Main Street, via Decatur and Bowie, Texas, and into Wichita .Falls. Its total length is approximately 115 miles. U. S. Highway 287 is east of the route through Jacksboro.
Springtown is in what is known as a “dry” county. Beer is not available as a beverage in Springtown. Beer is available in Azle. After defendant's servant had unloaded the telephone poles at Springtown he decided to drive to Azle in order to' drink a bottle of beer. The evidence raises the inference that he and his helper on the truck also intended to eat a meal at Azle, the time for the evening meal having arrived, but in any event they did not eat at Azle. They drove from Springtown to-Azle and the defendant’s servant and his helper did each drink one-bottle of beer,, but due to an impending difficulty with another patron of the establishment they decided to leave. In a discussion held between the defendant’s servant and his helper at the time, it was decided to return to Wichita Falls by a route which would take them into the city limits of the City of Fort Worth to 28th Street, thence in an easterly direction over to North Main Street and Highway 287, and thence back to Wichita Falls. They also intended to have their evening meal (along with another beer) at a point along this route.
The evidence in the record showed that the defendant’s servant labored under the mistaken opinion that the distance from Azle to Wichita Falls via the route so-planned was about the same as the distance would have been had he driven back via Springtown and Jacksboro. As a matter of fact, it would have been between 15 and 25 miles further. Defendant’s servant testified that at the time he determined on it he believed that it would be very little further, if any, by such route than to return via Jacksboro.
The servant, with his helper, proceeded to drive to Fort Worth. He intended to make a left turn at 28th Street, but when" they reached the 28th Street intersection he failed to get over into the left-turn lane through an error of judgment and therefore was compelled to continue south on State Highway 199. After having done so, he did not attempt to turn around and return to the intersection and the route previously determined upon. There is testimony in th.e record that he stated to his helper that [870]*870he knew another “cut-off” (presumably a way to get over to North Main Street), but the record is silent about where this actually was, or was believed to be. The record does show that the servant continued to drive in the direction of downtown Fort Worth until he reached the intersection of 12th Street in Fort Worth where the collision occurred. There is a signal light at said intersection, but there is no evidence that it was intended to make a left turn thereat — indeed the evidence shows an approach to the intersection in the outer or right-hand lane, from which no left turn would ordinarily be expected to be -made, when the brakes on the truck failed immediately before the moment of the collision.
In Texas the law is established to the effect that when a servant has completed the purpose for which he forsook his master’s business and is returning to the area within the -space-limits encompassing the duties of employment he is not to be considered as having resumed such duties. Where the facts unquestionably demonstrate either that the servant has completely departed from his work to accomplish some purpose of his own not connected with his employment, or that after such a departure he has not actually reengaged in his master’s business, he is outside the scope of his employment, and as a matter of law in the field of torts there is no relationship of respondeat superior existent between the parties. Southwest Dairy Products Co. v. De Frates, 1939, 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854, and cases cited. See extensive annotations in 22 A.L. R. 1397; 45 A.L.R. 477 ; 68 A.L.R. 1051; 80 A.L.R. 725, and 122 A.L.R. 858.
Under the circumstances of the instant case, we have a situation where the servant forsook the master’s business when he left Springtown and drove in the direction of Azle and Fort Worth. Although resisting any inference that the servant had .departed the space-limits of his employment when he went to Azle, plaintiffs contend that if the servant be properly considered as having done - so, neverthless he should be considered as having actually reengaged in his master’s business because of his actions coupled with his state of mind. At least, it is the plaintiffs’ contention, the question of agency became one of fact for the determination of the jury.
Essentially, plaintiffs’ contention is that because the servant was of the opinion that it was almost as near to Wichita Falls from Azle to take the road into Fort Worth as far as 28th Street, thence east to North Main Street, and thence north via Bowie, Texas, to Wichita Falls, — even though he was grossly mistaken in such opinion — he should be treated and considered as having reentered the space-limits encompassing the duties of employment once he had traveled as great a distance from Azle as would be equal to the distance from Azle back to Springtown. At least, say plaintiffs, the situation should raise a jury question.
In view of our interpretation of the holding in the case of Southwest Dairy Products Co. v. De Frates, supra, we cannot agree with the theory of the plaintiffs. In our view, the holding has the effect of placing the servant outside the scope of his employment and the master beyond any liability in tort to be imposed under the doctrine of respondeat superior' until it .might properly be said that a question exists as to whether the servant had actually reengaged in the master’s business— through a reentry of the space-limits of the duties of employment. We do not believe 'that a state of mind and opinion on the part of the servant to the effect that he had made such a reentry would be sufficient to make the agency status a question for the jury. Where the error of mind is so apparent, as in this case, it would be unjust for the law to permit any imposition of liability upon the master as such or as a principal in agency merely because of a mistake of mind on the part of the servant, when his mistake was made after he had made a complete departure from either relationship for a purpose not connected therewith. For this reason, we hold that [871]*871the matter was properly 'resolved as a matter of law, and that the court below correctly entered the judgment non obstante veredicto for the master.
However, even should we be mistaken in our conclusion aforesaid, the action of the trial court should be affirmed for an additional reason. Under the undisputed evidence, it was the opinion of the servant that his return trip to Wichita Falls would be about the same distance only if he made a left turn at 28th Street in Fort Worth, thence east to North Main Street, and thence north toward Wichita Falls. Also undisputed is the fact that through error on the part of the servant he found himself in a traffic lane- at 28th Street where he could not make a left turn to go east. He continued in the direction of downtown Fort Worth until he reached the intersection of 12th Street, where the collision occurred. In view of the ordinary and customary numerical order of city streets, there would be a presumption, not rebutted, that the servant had traveled some considerable distance after having passed 28th Street before reaching the point of the collision. We mention this in view of an absence of proof in the record as to the actual distance involved. The only explanation of why the servant did not turn around after having passed 28th Street and upon a return to the intersection proceed in an easterly direction on 28th Street toward North Main Street was that he knew another way to get onto North Main. The most liberal interpretation of the record in behalf of the plaintiffs would be to view the situation as one in which the servant was either lost after he passed 28th Street and was headed toward downtown Fort Worth or had not reached the point for an alternative “cut-off”. That being true, we are of the opinion that the burden of proof lay upon plaintiffs to reasonably justify the actions actually performed by the servant after having gotten off the route intended to be taken on the return trip. The burden not haying been discharged, the situation necessarily subsisted that the servant voluntarily left his route (which would take him east and back to the north) and proceeded to travel toward the south, outside and still further away from the space-limits of employment even if the intersection of 28th Street be properly considered to fall within such.
The plaintiffs strenuously urge the proposition that in view of the presumption of agency on the part of the servant established prima facie through his operation of the master’s truck, the jury was free to discredit his testimony bearing upon his intentions, etc. Since his testimony was the only direct evidence to the effect that he had departed from his course of duty, they point out the possibilities of injustice to plaintiffs generally where legitimate claims for relief in damages may be defeated through testimony of defendants’ servants that they had departed the path of duty, even though the plaintiffs’ prima facie cases have been made out and the jury disbelieves the servants’ testimony. While we fully appreciate the position of the plaintiffs in the instant case, nevertheless we are of the opinion that the possibilities of resultant injustice could work as well to a defendant in such circumstances as to a plaintiff. The question of the allowability of an instructed verdict for a defendant principal upon evidence not directly contradictory of the presumption of agency, arisen through proof that a vehicle driver was an employee hired to operate the same, must sometimes be left for individualized handling by the trial judge in the exercise of his trained and reasonable judgment.
Plaintiffs admit that the presumption of agency so brought about vanishes when the master comes forward with positive evidence to the contrary, but contend, in view of Judge Alexander’s observations in Houston News Co. v. Shavers, Tex.Civ.App.1933, 64 S.W.2d 384, 386, error refused, that it would only be when such master has made a clean and clear disclosure of all the evidence apparently within his possession by introduction as wit[872]*872nesses “All those who presumably would know the facts” that the presumption of agency might disappear, and then only when the evidence was positive to the contrary of the presumption. In the instant case, the plaintiffs point out that the servant’s father, who was the employee of the •same master (defendant here) and the man whom they claim gave the servant his last instructions relative to the trip, was not produced by the' defendant as a witness.
An examination of the statement of facts discloses that the defendant partnership brought to the trial Richard Haas, one of the partners who employed the servant. He testified that on the occasion in question the defendant had no business for' the servant to perform in Fort Worth, and that it was he who told the servant to take the telephone poles to Springtown. He further testified that when he was out of town only one other person, one Joe Clark, had direct control over the firm’s employees, including the servant, but that Clark was not present at a material time on the day of the trip. The defendant offered the testimony of Mrs. Albright, one of the partners defendant, who testified that Mr. Clark was out of town on the day of the accident, and that she left the company premises at noon, which was before the time the trip to Springtown was ¡made.
The record shows that the trial from which this appeal was taken was not the first trial of the case. There had been at least one prior trial. Under the circumstances of the case, as otherwise apparent, we believe the testimony of Mr. Haas was directly contradictory of the presumption of agency. Also contradictory of the presumption was the testimony of the servant. Of course, both were parties interested in ■resisting the claim presented by suit, for the servant was a named defendant along with his master. Under the circumstances, we are of the opinion that the rules of evidence relative to the rebutting of presumptions of the kind here considered would not operate to make erroneous the judgment entered. We do not believe that the failure to bring the servant’s father to Fort Worth to testify would inhibit the entry of the judgment, for there is nothing to indicate that he had any authority over the matter of the servant’s agency. Also, in our view, the records do not have the effect of conflicting with defendant’s evidence against the presumption of agency, as contended by plaintiffs.
Judgment is affirmed.