Buss v. Robison, 6249

• Decision Date: 17 November 1952
• Docket Number: No. 6249,6249
• Citation: 255 S.W.2d 339
• Parties: BUSS v. ROBISON et al.
• Court: Texas Court of Appeals

Page 339

255 S.W.2d 339

BUSS v. ROBISON et al.

No. 6249.

Court of Civil Appeals of Texas, Amarillo.

Nov. 17, 1952.

Rehearing Denied Dec. 22, 1952.

Brundidge, Fountain, Elliott & Bateman, Dallas, Leigh, Fischer, Borger, for appellant.

Stone & Stone, Amarillo, Dally & Alexander, Borger, for appellees.

PITTS, Chief Justice.

This suit for damages was filed on June 28, 1951, against appellant, John Buss, by appellees, Jessie Marie Robison, a feme sole, individually and as next friend of and for the use and benefit of her two minor children, Leonard Verlon Robison and Francis Lazette Robison, and for the use and benefit of Traders & General Insurance Company as well as for the use and benefit of Charlie Robison and Avis Robison. Appellees predicated their claim for damages upon alleged wrongful acts of negligence of appellant which resulted in the death of Leonard Clovis Robison, who was the husband of Jessie Marie Robison, the father of the two named minors and the son of Charlie and Avis Robison. Appellees further pleaded that the deceased and John W. Osborn were employed by Shepmons Builders Supply Company when on May 21, 1949, they were engaged in the course of their employment and were riding in a 1948 panel truck owned by their employer but was being operated by Osborn when it collided with a Chevrolet coupe automobile owned and operated by appellant, resulting in the death of Leonard Clovis Robison who was then 25 years of age. It was further alleged that Traders & General Insurance Company assumed liability in connection with the claim for the damages on July 11, 1949, under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq. This suit was filed on behalf of the said Insurance Company together with the other appellees herein named. The case was tried to a jury on February 13, 1952, and judgment was rendered on its verdict on March 11, 1952, for appellees in the total sum of $20,000 from which judgment appellant has perfected its appeal. This controversy grew out of the same collision as that presented and discussed by this court in the case of Buss v. Shepherd, 240 S.W.2d 382.

Many issues were presented to the jury, in answer to some of which it found both appellant and Osborn guilty of negligence which proximately caused the collision that resulted in Robison's death. The jury likewise found that the deceased, Robison, was asleep immediately prior to and at the time of the collision but that such did not constitute negligence on his part. The jury further found that the deceased and John Osborn, who was driver of the panel truck at the time and place in question, were not engaged in a joint enterprise at the time and place of the collision. Appellant contends there was no evidence to support the latter finding of the jury; that, on the contrary, the evidence conclusively established the fact that the deceased and Osborn were engaged in a joint enterprise at the time and place in question; that the trial court erred in its refusal to set aside and disregard the said finding on the said grounds alleged by appellant and hold, as a matter of law, that the deceased and Osborn were engaged in a joint enterprise at the time and place of the collision and that the negligence of Osborn was therefore imputed to the deceased.

The special issue in question was submitted to the jury in the following language, together with a definition of 'joint enterprise' given:

'Do you find from a preponderance of the evidence that the deceased, Leonard Clovis Robison, and the driver of the panel truck in question, John W. Osborn, were engaged in a joint enterprise at the time of the collision in question, as the term 'joint enterprise' has bereinbefore been defined to you?

'Answer 'Yes' or 'No'.

'The term 'Joint Enterprise', as used herein, means that the occupants of the panel truck in question are supposed to be on a joint expedition where they not only had a joint interest in the object and purpose of the enterprise, and joint possession of the truck, but also an equal right, expressed or implied, to direct or control the conduct of each other in the operation of the panel truck in question.'

Appellant did not object to the submission of the issue or the definition given.

After the jury verdict had been received and before the trial court had rendered its judgment, appellant on February 26, 1952, filed its motion urging the trial court to disregard and set aside the negative answer of the jury to the foregoing special issue and hold, as a matter of law, that the deceased and Osborn were engaged in a joint enterprise on the occasion in question for the alleged reasons that the uncontroverted evidence showed the said parties at the said time had a joint interest in the object and purpose of their trip, had joint possession of the panel truck being used by them, and each of them had an equal right, expressed or implied, to direct or control the conduct of the other in the operation of the panel truck. In order to prevail in the question here presented, appellant must establish conclusively, and therefore as a matter of law, that the said employees had a joint interest in the object and purpose of their trip, had joint possession of the panel truck and each of them had an equal right, expressed or implied, to direct or control the conduct of the other in the operation of the said truck. The failure of appellant to establish any one or more of these elements of joint enterprise will defeat the contention here made by appellant. If the evidence presented raised a fact question about either of these elements, the jury finding and the trial court's judgment based thereon must be sustained in so far as they apply to the issue in question. El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187; and Ford Motor Co., v. Maddin, 124 Tex. 131, 76 S.W.2d 474.

In examining the evidence, we are not concerned about its preponderance but only about its probative force or its sufficiency to raise an issue. In determining its sufficiency, we must give credence only to the evidence and circumstances, if any there be, favorable to the question raised and disregard all such to the contrary.

Orville Shepherd, a member of the Shepmons Builders Supply partnership, and the employer who directed the work of Osborn and the deceased, Robison, on the occsion in question, testified that their place of business was in Borger, Texas; that he had two jobs for the said two men to do on that occasion; that one of the jobs was a venetian blind job to be performed in Spearman and the other a floor covering job to be performed in Morse; that he instructed Osborn to take Robison to Morse and leave Robison there to do the floor covering job and for Osborn to proceed further on to Spearman with the venetian blinds where Osborn would there hang them and thereafter return to Morse to help Robison finish the floor covering job before they were to return to Borger; that Osborn was driving the panel truck when he and Robison left. The witness further testified later that he instructed Osborn to take Robison to Morse to lay the linoleum and then go on to Spearman, hang the venetian blinds and return to Morse and help finish up the floor covering work before coming back to Borger.

John W. Osborn testified that he was 18 years old at the time of the collision and he and Robison had often worked as a team for Shepmons; that he was driving the panel truck as he and Robison were on their way to do the two jobs given them to be by Mr. Shepherd; that Robison was asleep prior to and at the time of the collision, which occurred before they reached Morse, where Robison was to do the floor covering job; that on the floor covering work Robison was the boss but that neither of them had any authority over the other in driving the panel truck.

It appears from the evidence that prior to the collision and when it occurred, Robison had left the whole course of their employment for the time being to Osborn and had fallen asleep. Osborn was operating the panel truck under the specific instructions of their employer Shepherd, to deliver Robison to Morse where Robison would do a floor covering job while Osborn would continue on alone to Spearman to hang the venetian blinds. At the time of the collision, the two employees were headed for two separate places some miles apart, under the instructions of their employer, to engage in two separate jobs, neither job being related to the other. Osborn had been directed by their employer to 'take' Robison to his job and continue on to a different place where Osborn would perform his separate and different assignment alone. After Osborn finished his assignment, he was directed to return to Morse to help Robison finish the assignment there, assuming of course that Robison would not be through with the...