Coleman v. Rollo

• Decision Date: 11 May 1932
• Docket Number: No. 3813.,3813.
• Citation: 50 S.W.2d 391
• Parties: COLEMAN v. ROLLO.
• Court: Texas Court of Appeals

50 S.W.2d 391

COLEMAN v. ROLLO.

No. 3813.

Court of Civil Appeals of Texas. Amarillo.

May 11, 1932.

Rehearing Denied June 1, 1932.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Action by Clarence Rollo against C. A. Coleman. From an adverse judgment, defendant appeals.

Reversed and remanded.

Vickers & Campbell, of Lubbock, for appellant.

Rob't A. Sowder, of Lubbock, for appellee.

HALL, C. J.

Rollo sued Coleman, alleging that about November 20, 1930, while plaintiff was driving his automobile northward along Avenue Q in Lubbock, defendant's minor son, Grover Coleman, about 17 years of age, was driving a Ford automobile belonging to the defendant westward on Thirteenth street, and through Grover's negligence a collision occurred, resulting in personal injuries to his damage in the sum of $7,500, and further damaging his automobile in the sum of $600.

The negligence alleged is violation of the law of the road and the city ordinances in failing to observe and obey a stop sign on Thirteenth street, driving at the rate of 45 miles per hour and failing to keep a lookout.

Defendant answered, alleging that his son Grover was driving his Ford car without defendant's consent or permission and on no mission of business or otherwise for defendant. The answer also contains pleas of contributory negligence which are immaterial in the consideration of the contentions urged here.

Upon the conclusion of the evidence, the defendant requested the court to direct a verdict in his favor.

The court submitted the case to the jury on several special issues, the first being: "Do you find from a preponderance of the evidence that the defendant C. A. Coleman, either expressly or impliedly, gave his consent to his son Grover Coleman to use the Ford car in question on the date and at the time of the collision?" This was answered in the negative.

Other issues were submitted, in response to which the jury found that the minor, Grover Coleman, was guilty of negligence in exceeding the speed limit, which was the proximate cause of the injury, and other findings in plaintiff's favor.

Based upon the verdict, the court rendered judgment in favor of plaintiff in the sum of $506.25 for personal injuries and damages to plaintiff's car.

The case is before us upon one assignment of error by which appellant insists that, because the jury found, in response to special issue No. 1, that the defendant's minor son was driving the Ford car without either the express or implied consent of the defendant, and because such finding is supported by both the pleadings and the evidence, plaintiff was not entitled to recover.

This is a material finding, and, if it has any evidence to support it, the court could not ignore it and render judgment contrary to it. Rev. St. art. 2211, as amended by Acts 42d Leg. (1931), c. 77, § 1 (Vernon's Ann. Civ. St. art. 2211).

It is apparent from the judgment that the court considered this finding immaterial. This is error.

The appellee insists that, under the undisputed facts, the family purpose doctrine is not a defense. On the other hand, the appellant contends that he is not liable under the family purpose doctrine, because the car which his son Grover was driving was not a car used for convenience and pleasure of the family, but had been bought for his sons Grover and his brother, both minors, to be used by them in attending school two or three miles distant from their home. The sons were members of the family. The duty of sending his children to school rested upon defendant as the head of the family, and a car used for that purpose was a "family car."

The evidence showed that defendant had owned the car something over a year, and the speedometer registered almost 24,000 miles, when, as insisted by appellee, not more than 3,000 miles would have been registered if the car had been used by the boys in attending school and for no other purpose.

Grover testified that his father owned two cars, the Ford car, which he was driving on the night of the wreck, and a Chevrolet. He admitted that he had driven the car away from home on several occasions without asking his father's permission. He further testified that his father furnished gasoline for both cars and kept a five-gallon can of oil at home for use. That the car had been driven to Crosbyton to two ball games and also to Lubbock and Tahoka.

The defendant testified that his main purpose in buying the car was for his sons to use in attending school. That he also owned a Chevrolet sedan. That he had used the Ford car several times himself and had permitted his son Grover to use the car for other purposes than driving back and forth to school. That his family consisted of himself, wife, an unmarried daughter about 23 years of age, and his two sons, Grover and Luther. When asked if he required the boys to get permission to drive the car anywhere else except to school, his reply was: "Yes. They ask me if they drive it anywhere else. Now, there was a whole lot of basket balls and foot balls going on and when they would go to school the teachers would want them to take the car and take some of the pupils to these foot balls and basket balls and they did that, but I did not raise any kick about that, because it was in school." That Luther drove the car down to Starville two or three times with another boy to see some girls and he let him drive it there, the round trip being about 350 miles. That he gave no directions as to which of the boys should drive the car when they attended football and basket ball games. That he knew Grover had been to Lubbock several times when he did not ask the defendant's permission. That he gave him permission to go once or twice to see a girl at Lubbock. He further said: "I would rather he would not, but then I just can't handle them just like I would like to every time about that. The fact of the business is when a boy gets 15 or 16 years old you can't get him to do everything that you want him to, not very well you can't."

He said he purchased the car for the convenience of himself and the boys that they might have some way to get to...