Bonney v. San Antonio Transit Co.

• Decision Date: 08 October 1958
• Docket Number: No. 13348,13348
• Citation: 317 S.W.2d 69
• Parties: Ralph BONNEY, Appellant, v. SAN ANTONIO TRANSIT COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 69

317 S.W.2d 69

Ralph BONNEY, Appellant, v. SAN ANTONIO TRANSIT COMPANY et al., Appellees.

No. 13348.

Court of Civil Appeals of Texas, San Antonio.

Oct. 8, 1958.

Rehearing Denied Nov. 5, 1958.

Stahl & Sohn, San Antonio, Linnan & Lynch, Algona, Iowa, for appellant.

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

BARROW, Justice.

In the original opinion, prepared by Chief Justice Murray, we reversed and remanded the case on the ground that the evidence was insufficient to support the jury's finding that the plaintiff was engaged in a joint enterprise. Appellant has filed a motion for rehearing in which he contends that we were in error in holding the evidence insufficient, and that we should have reversed and rendered the case on the ground that there was no evidence to support the finding. We have reconsidered the record and have reached the conclusion that not only is there some evidence, but sufficient evidence, to support the finding. Our original opinion is, therefore, withdrawn and the following opinion delivered in lieu thereof.

This suit was instituted by Ralph Bonney against the San Antonio Transit Company and its employe, Oscar D. Reyes, seeking to recover damages for personal injuries sustained when an automobile in which Bonney was riding collided with a bus owned by the Transit Company and driven by Oscar D. Reyes. The collision occurred on February 19, 1954, in the City of San Antonio, at the intersection of Navarro and St. Mary's Streets. The automobile in which Bonney was riding was owned and driven by Vern Shipler.

The trial was to a jury and resulted in judgment that Bonney take nothing, from which judgment he has prosecuted this appeal.

The jury found negligence and proximate cause against appellees, and fixed appellant's damages at $25,000. The jury also found negligence and proximate cause against Vern Shipler, the owner and driver of the automobile in which appellant was riding, but further found that Vern Shipler's negligence was not the sole proximate cause of the collision.

The appellees pleaded joint enterprise between Bonney and Vern Shipler. On this defense the jury found, in answer to Issue No. 42, that Bonney did not exercise any control over the driver of the Shipler automobile, but, in answer to Special Issue No. 43, that he had a right to exercise such control. Appellant contends: (1) That there was no evidence to support the jury's answer to Issue No. 43; (2) that there was not sufficient evidence to support such issue; (3) that the answer was so against the overwhelming preponderance of the evidence as to be manifestly wrong. The evidence shows that Vern Shipler lived in Burt, Iowa. He had an uncle by the name of Russell Shipler, and a cousin by the name of Stanley Shipler living in San Antonio, Texas. Vern Shipler decided to visit his relatives and to make the trip in his 1951 Packard four-door automoble. His uncle, Bryan (Brink) Shipler, who lived at Swea City, Iowa, decided to go with him. He also asked Earl Ackerman and appellant, Ralph Bonney, to accompany him, as they knew his San Antonio relatives. Before they left Burt, Iowa, they all decided that they would make up a 'kitty' by each contributing an equal amount, and out of this 'kitty' they would pay for all gas and oil used on the trip, and for their meals and lodging incidental to the trip. Each member of the party contributed either $10 or $20 to the 'kitty', the witnesses were uncertain which. They elected appellant treasurer, and he kept the 'kitty' and paid all the expenses. Before leaving Burt, Iowa, they got a map and agreed upon the route to be taken. They generally agreed upon the stops they would make for coffee, meals or gas, and when they made those stops they would look at the map and decide where they would stop next, and to see what was ahead. They spent one night at a motel in Oklahoma and paid their bill out of the 'kitty.' When the 'kitty' would run low they would make additional contributions to it. Appellant testified that he would call upon the others to make the additional contributions. When they left Burt, Iowa, Vern Shipler had his car full of gas and oil, and they all agreed that when they returned they would refill his car with gas and oil. Appellant testified that at the end of their visit in San Antonio, they agreed upon the time to start back home. They made a trip to Mexico and paid the cost out of the 'kitty'. Brink Shipler, while in San Antonio, received a message that there was sickness in his family and flew back to Iowa, leaving only three of them to make the return trip in the car. On the trip down from Iowa, Vern Shipler and Brink Shipler sat on the front seat and Brink did some of the driving.

Where persons are engaged in a common or joint enterprise, and each has an equal right to direct and control the conduct of the others with respect to the acts or omission which contributed to cause the injury, the negligence of one of such persons is imputed to each of the others. 65 C.J.S. Negligence Sec. 158, p. 798; LeSage v. Pryor, 137 Tex. 455, 154 S.W.2d 446; Garrett v. Brock, Tex.Civ.App., 144 S.W.2d 408. Where the common purpose or enterprise involves the use of an automobile, each person must have some voice and right to be heard in its control and management. Garrett v. Brock, supra. The mere fact that the occupant has no opportunity to exercise actual physical control is immaterial. Ownership of the vehicle is an important circumstance, but is not conclusive. Blashfield, Automobile Law, Vol. 4, Part 1, Sec. 2372, p. 496; Murphy v. Keating, 204 Minn. 269, 283 N.W. 389. It is commonly a question of fact for the jury to say whether a joint enterprise exists between the driver and another occupant of the automobile, except where the evidence as to the existence of such a relation is insufficient to go to the jury. Blashfield, Automobile Law, Vol. 4, Part 1, Sec. 2382, p. 500. The relationship must be based upon an agreement, expressed or implied. El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187.

In this case there is no dispute that the parties were engaged in a joint mission, undertaking and adventure. The court impliedly so found, and no complaint is made of that finding. It was an issue of fact and appellant made no request that it be submitted to the jury. The only remaining question is the joint right to direct and control the operation of the automobile.

The evidence is sufficient to support the jury's finding that appellant, Bonney, had the right to exercise some control over the driver in the operation of said automobile. This is not a case where a mere guest makes voluntary contributions to the expenses of a trip. This was a planned trip, entered into by agreement of the parties. They agreed upon where they were going, when they would start and when they would return. They agreed upon the routes they would take, and where and when they would make stops. They agreed upon how they would split the expenses, not only of the gas and oil for the automobile, but their food and lodging on the trip. They were careful to elect a treasurer of their joint funds, and have him pay the expenses, thus keeping the 'kitty' separate from their private funds and keeping strict account of the joint expense fund. When Vern Shipler and Brink Shipler occupied the front seat on the way down, Brink shared the driving duties with Vern. Inasmuch as appellant, Bonney, had been moved up to the front seat for their return trip, it may be reasonably inferred he was to share in the actual driving. This was an extended trip of some 2,600 miles, planned and agreed upon in detail. The payment by the parties, other than the owner, of their agreed share of the expenses would constitute a consideration for the right to an equal voice in the manner of performance, and an equal right to control over the automobile. Lampe v. Tyrell, 200 Wash. 589, 94 P.2d 193. It is noted that where the owner of the automobile is actually operating the same, or where he is present in the car, it is inferred that he is in control of the car, but this inference is not conclusive, it presents an issue of fact for the jury. In this case there is ample evidence to the contrary. The facts are undisputed and come from appellant and his witness. The right of Bonney to exercise joint control of the car is a reasonable deduction which the jury might draw from all the facts and circumstances.

In determining the question of whether or not the verdict of the jury is supported by evidence, the appellate court must view the evidence in the light most favorable to the successful party, disregarding all evidence that is adverse thereto, and indulge every legitimate conclusion that is favorable to him. Texas Prudential Ins. Co. v. Knighten, Tex.Civ.App., 186 S.W.2d 843; Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297; Glenn v. Glenn, Tex.Civ.App., 183 S.W.2d 231.

In Douty v. Delta Drilling Co., Tex.Civ.App., 264 S.W.2d 164, 167, writ refused n. r. e., Douty, while riding in a car owned and driven by Glynn Holder, and while they were returning from a joint fishing trip, was injured in a collision with another car. Recovery was denied on the finding of the jury that they were engaged in a joint enterprise. The Court in passing upon the question said:

'In the case at bar the facts and circumstances surrounding the acts and conduct of Holder, the driver of the car, and appellant who was riding with him, show that they were intimate friends of long standing, that they were fishing partners or buddies and that they used each other's car on the different occasions in which to go fishing. Fishing was their joint recreation. As stated by one of the witnesses, sometimes they went in one car and sometimes in the other. When they went in appellant's car to Cherokee or some fishing place nearby their home, appellant paid the expenses. On long trips when expenses were greater they would share them....