Cole v. Wright

• Decision Date: 04 May 1929
• Docket Number: (No. 10413.)
• Citation: 18 S.W.2d 242
• Parties: COLE v. WRIGHT et al.
• Court: Texas Court of Appeals

18 S.W.2d 242

COLE v. WRIGHT et al.

(No. 10413.)

Court of Civil Appeals of Texas. Dallas.

May 4, 1929.

Appeal from District Court, Dallas County; J. R. Warren, Judge.

Action by J. T. Wright and another against H. S. Cole and another. From judgment for plaintiffs, the named defendant appeals. Reversed and rendered.

Cunningham & Lipscomb, of Bonham, for appellant.

Slay, Simon & Shannon, of Fort Worth, for appellees.

VAUGHAN, J.

In this case the appellant, H. S. Cole, seeks to reverse a judgment rendered against him and his codefendant, B. O. Cole, jointly and severally, in the trial court, on the ground that appellant was not liable for the negligence of said B. O. Cole under the family automobile purpose doctrine. Appellee J. T. Wright, by his next friend and father, John J. Wright, sued appellant, B. O. Cole, and Julius Germany, to recover damages for personal injuries which he alleges he sustained by reason of the negligence of said B. O. Cole and Miss Martha Germany, daughter of the defendant Julius Germany, whose car she was driving at the time said appellee was injured, proximately causing his injuries. Appellee John J. Wright also sued said parties for damages alleged to have been sustained by him on account of money he had paid out and would have to pay out for the use and benefit of his son, appellee J. T. Wright, for medical treatment, medicine, and other expenses made necessary on account of the injuries alleged to have been received by said J. T. Wright. After J. T. Wright became of age, by an amended petition, he alleged that fact and prosecuted his suit in his own right. As to Julius Germany, the court instructed a verdict to be returned in his behalf, and from this feature of the judgment no appeal was prosecuted; and B. O. Cole did not appeal from the judgment against him.

Appellees alleged: That the automobile in which J. T. Wright was riding was struck by an automobile owned by appellant, H. S. Cole, which, at the time of the accident, was being driven by his son B. O. Cole on the Dallas-Fort Worth pike, a public highway between and connecting said cities; that the automobile in which he was riding was struck by the automobile owned by appellant, and the consequent injuries to him, of which he complains, were caused by negligence of the said B. O. Cole, for which H. S. Cole was liable upon the following grounds: "That the said B. O. Cole was a son of and a member of the family of the said H. S. Cole, and that the automobile said B. O. Cole was driving belonged to his father, H. S. Cole, was a family car, acquired and purchased by the said H. S. Cole for the use, pleasure, comfort and convenience of his family, of which B. O. Cole was a member; that B. O. Cole was driving the car belonging to his father, H. S. Cole, along said highway in an easterly direction; that following said car one Martha Germany, daughter of defendant Julius Germany, was driving a Cadillac car, and that said B. O. Cole, while he was so driving said car, at the time of the collision and prior thereto, was in a drunken and intoxicated condition, and that he drove his car off the right-hand side of the road, where it was his duty to drive said car, so that the same collided with great force and violence with the car in which appellee, J. T. Wright, was riding; that the injuries he received were proximately caused by negligence in one or more of several respects."

The damages claimed are predicated on severe suffering, mental and physical, permanent physical disability, loss of time, and destroyed capacity to labor and earn money. Appellant answered by general demurrer, general denial, and special plea, alleging substantially: (a) If B. O. Cole did negligently injure appellee J. T. Wright as alleged in appellees' petition, that said B. O. Cole was using the automobile at the time contrary and against his wishes, and that said B. O. Cole was not the agent or representative of him, the said H. S. Cole, and that the car in question was owned by him and was not in any manner acquired, owned, or used as a family car or for the pleasure of B. O. Cole; that said B. O. Cole was an adult and was not a member of the family of the said H. S. Cole; that he had reached his majority and was not under his supervision and protection.

The trial resulted in a judgment in favor of appellee J. T. Wright for the sum of $7,958, and in favor of John J. Wright for the sum of $2,733, against appellant and B. O. Cole.

Neither the special issues submitted nor the answers thereto will be stated, for in order to dispose of this appeal we find it only necessary to discuss one proposition, namely, that the trial court should have instructed a verdict in favor of appellant, because no fact was established by the evidence upon which a recovery could be based in favor of appellees, or either one of them, against appellant.

We find the following facts to have been established beyond controversy: That appellant is the father of defendant B. O. Cole;...