Bonney v. San Antonio Transit Co.

• Decision Date: 27 May 1959
• Docket Number: No. A-7088,A-7088
• Citation: 160 Tex. 11,325 S.W.2d 117
• Parties: Ralph BONNEY, Petitioner, v. SAN ANTONIO TRANSIT COMPANY et al., Respondents.
• Court: Texas Supreme Court

Page 117

325 S.W.2d 117

160 Tex. 11

Ralph BONNEY, Petitioner, v. SAN ANTONIO TRANSIT COMPANY et al., Respondents.

No. A-7088.

Supreme Court of Texas.

May 27, 1959.

Rehearing Denied July 8, 1959.

Stahl & Sohn, San Antonio, for petitioner.

Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for respondents.

HICKMAN, Chief Justice.

This is an action for damages for personal injuries growing out of a collision in the city of San Antonio between an automobile and a bus. The suit is by petitioner, Ralph Bonney, an occupant of the automobile, against respondents, San Antonio Transit Company, owner of the bus, and its employee, Oscar Reyes, the driver of the bus.

The case was submitted to the jury on special issues, resulting in findings of (1) negligence and proximate cause against Reyes and against Vern Shipler, the owner and driver of the automobile, who was not a party to the suit; (2) negligence but not proximate cause against petitioner, Bonney; and (3) damages of $25,000. The jury also found in answer to Special Issue No. 42 that Bonney did not exercise any control over the driver, Shipler, in the operation of the automobile, but in answer to Specal Issue No. 43 the jury found that he had the right to exercise such control. Based upon this latter finding, the trial court entered judgment that Bonney take nothing. That judgment was affirmed by the Court of Civil Appeals, one of the Justices dissenting. Tex.Civ.App., 317 S.W.2d 69.

The theory upon which the Court of Civil Appeals affirmed the judgment is that Special Issue No. 43 was a submission of the question of joint enterprise and the answer of the jury thereto was a finding that Bonney and Shipler were engaged in a joint enterprise, with the result that Shipler's negligence is imputed to Bonney. Bonney does not question that theory but contends that there is no evidence to support the jury's finding in answer to Special Issue No. 43. Whether or not there is any evidence warranting the submission of that issue to the jury or supporting the answer of the jury thereto is the principal question in this case.

The material facts are without dispute. They may be stated briefly as follows: Vern Shipler, who lived in Iowa, decided to visit relatives in San Antonio, Texas. He invited his uncle and two friends, Earl Ackerman and petitioner, Bonney, to accompany him on the trip. In so far as the record discloses, Ackerman and Bonney went along for a vacation trip. Before leaving Iowa the parties agreed to share equally the expenses of the trip. To that end each of the four contributed an agreed amount to a common fund, which was replenished from time to time, and from which were paid the expenses of the car, lodgings, and meals. Bonney held and administered the common fund. The parties consulted together concerning the routes to travel, the stops to be made, and the time to return home. Shipler's uncle occupied the front seat with him on the way to San Antonio and did some of the driving. Before returning to their home, the group made a side trip across the border into Mexico, the expenses of which were paid from the common fund. On the morning when the group (less Shipler's uncle, who had flown back to Iowa) was leaving to return home, the automobile collided with a bus on a San Antonio Street. Bonney was riding on the front seat with Shipler and sustained personal injuries.

The cases are legion on the general question of joint enterprise, many of them by courts of this State. The established definition of joint enterprise in this jurisdiction as applicable to the facts here under review is that a joint enterprise exists where a driver and an occupant of an automobile 'have not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.' El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187, 189; Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65.

As indicated above, the principal question in this appeal is whether the jury finding in answer to Special Issue No. 43 is supported by any evidence. We have concluded that it is not. That question may be narrowed by observing, first, that we do not have before us a case in which the owner was present in his own automobile driven by another, as in Straffus v. Barclay, supra; second, nor one in which a parent was present in an automobile driven by his minor child, as in Nelson v. Fulkerson, 155 Tex. 298, 286 S.W.2d 129; third, nor one in which a driver and an occupant jointly borrowed an automobile, as in El Paso Electric Co. v. Leeper, supra; fourth, nor one in which the parties were engaged in a joint business venture in which all were interested, which in some jurisdictions is regarded as creating a relationship akin to partnership. This case is one in which the owner of the automobile is also the driver on a nonbusiness trip. We are unable to discover any facts in the evidence that would support a reasonable inference that Shipler impliedly agreed to relinquish any part of his exclusive right to control the operation of his automobile.

Respondents rely principally upon these facts: (1) Shipler and the occupants agreed to share the expenses of the trip; and (2) they conferred together concerning routes to be taken, stops to be made, and time for departure. We cannot agree that there is anything in the nature of an agreement by an owner and an occupant to share in the cost of operating an automobile which evidences an implied agreement by the owner to relinquish, in part, his exclusive right to control the manner of driving his automobile. Doubtless, countless trips are taken where participants agree to share the automobile expenses, without any agreement, express or implied, to share the right to control the operation of the automobile. To permit a jury to infer from such an agreement that the owner has relinquished, in part, his right to control the manner of operating his automobile would be to extend the doctrine of joint enterprise far beyond its proper scope.

We have reached the same conclusion in regard to respondent's contention that a joint...