opinion: STANDARD COFFEE CO., Inc., v. TRIPPET et al.
  No. 9070.
  Circuit Court of Appeals, Fifth Circuit.
  Dec. 20, 1939.
  Rehearing Denied Jan. 15, 1940.
  HUTCHESON, Circuit Judge, dissenting. ,
  Robert G. Payne, of Dallas, Tex., for appellant.
  S. A. Crowley, of Fort Worth, Tex., and Jake Tirey, of Waco, Tex., for appellees.
  Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.
  McCORD, Circuit Judge.
  On July 28, 1938, Joseph Dennis Trip-pet was killed when the car he was driving collided head-on with a truck owned and operated by Standard Coffee Com-' pany, Incorporated. The accident occurred on a hill on the highway between Lufkin and Nacogdoches, Texas. The upgrade was such that drivers could not see approaching cars until they were within-a short distance of the crest of the hill. The driver of the Standard Coffee Company truck had driven left of the center of the highway in order to pass a car and as he neared the hilltop he met Trip-pet’s vehicle and the collision resulted.
  Fay H. Trippet, the mother of the deceased boy, filed suit for damages against the Standard Coffee Company. Commercial Standard Insurance Company was the compensation insurance carrier for the employer of Joseph Trippet and had assumed its full statutory liability on account of his death. For that reason it joined with Mrs. Trippet in the suit against Standard Coffee Company. The case was tried to a jury which found for Mrs. Trippet and assessed damages in the sum of $7,500.
  Standard Coffee Company, the appellant, contends that the evidence shows as a matter of law that its truck driver was not acting in the course of his employment at the time, of the accident, and that its motion for a directed verdict should have been granted.
  The pertinent facts are these: R. B. McAdams, the driver of the truck, lived in Lufkin, Texas. He was an employee of Standard Coffee Company and was in charge of the company’s Lufkin Branch. He testified that he worked the trade in his territory by going from house to house in the various communities, and that his duties consisted of delivering coffee and other company products to customers and getting new orders for future deliveries. The truck he used belonged to Standard Coffee Company and its name was painted on the truck body. This truck had been placed in McAdams’ exclusive possession by the company.
  On Thursday, July 28, 1938, McAdams left Lufkin and went to Nacogdoches to work the trade there. He called on a number of his customers in Nacogdoches that morning and around noon started driving back to Lufkin. It was on this return trip that the accident occurred.
  The Standard Coffee Company vigorously contends that McAdams was without authority to return to Lufkin; that he was to spend all day Thursday and Thursday night in Nacogdoches and on Friday go to Timpson, Texas.
  McAdams, the driver of the Standard Coffee Company truck, did not testify, but his deposition was introduced in evidence. This deposition included testimony that at the time of the accident he was returning to Lufkin to get his electric razor. The plaintiff thereupon introduced his prior contradictory statement to the effect that he was returning to Lufkin to “pick up some special blend coffee”.
  The Texas authorities support the general rule that where a servant turns aside from the master’s business for some purpose wholly disconnected with his employment, or to engage in an affair of his own, 'the master is not liable for his actions. Bresnan v. Republic Supply Co., Tex.Civ.App., 63 S.W.2d 1105; Galveston H. & S. A. R. Co. v. Currie et al., 100 Tex. 136, 96 S.W. 1073, 10 L.R.A., N.S., 367; Branch v. International & G. N. Ry. Co., 92 Tex. 288, 47 S.W. 974, 71 Am.St.Rep. 844; Southwest Dairy Products Company, Inc. v. De Frates, et al., 132 Tex. 556, 125 S.W.2d 282, 122 A.L.R. 854.
  Here the case is different. When the plaintiff introduced proof that the truck involved in the accident was the property of Standard Coffee Company and that it was being operated by an employee of that company, a presumption was raised that the employee was operating the tru,ck within the line and scope of his employment and in the ordinary discharge of his duties. This is settled Texas law. Globe Laundry v. McLean, Tex.Civ.App., 19 S. W.2d 94; Harper v. Highway Motor Freight Lines, Tex.Civ.App., 89 S.W.2d 448; Alfano v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466; Studebaker Bros. Co. v. Kitts, Tex.Civ.App., 152 S.W. 464.
  Such a presumption, however, may be rebutted by evidence which is clear, positive, and unequivocal, and when such evidence is introduced the plaintiff’s prima facie case fails. Hudson v. Ernest Allen Motor Co., Tex.Civ.App., 115 S.W.2d 1167; Alfano v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466; Gregg v. De Shong, Tex.Civ.App., 107 S.W.2d 893; Robb v. Bartels, Mo.App., 263 S.W. 1013; Houston News Co. v. Shavers, Tex.Civ. App., 64 S.W.2d 384; Texas News Co. v. Lake, Tex.Civ.App., 58 S.W.2d 1044.
  In the case at bar McAdams was the only person who knew the true purpose of the trip to Lufkin. He testified that he was going back after a razor. The day was Thursday and he would return to his home on Saturday and one may conclude that he would not stand in need of the razor to any great extent until he returned home. Moreover, this statement about driving over forty miles for a razor was certainly discredited by the introduction of his prior written statement' "that he was going back to “pick up some special blend coffee”. The jury had the right and may have discredited his testirrfony as being inherently improbable. Cf. American Casualty Co. v. Windham et al., 5 Cir., 107 F.2d 88; American Jurisprudence, Vol. 20, par. 1183.
  The rebutting testimony was not so clear, positive, and unequivocal as to warrant, as a matter of law, -the overturning of the presumption arising from the ownership and operation of the automobile. Under all the facts and circumstances of this case we think it clear that the issues raised were properly submitted to the jury, and that the Court rightly refused to give a directed verdict for the defendant or to set aside the jury’s modest verdict.
  The judgment is affirmed.