Ener v. Gandy

• Decision Date: 11 February 1942
• Docket Number: No. 7776.,7776.
• Citation: 158 S.W.2d 989
• Parties: ENER v. GANDY et ux.
• Court: Texas Supreme Court

Page 989

158 S.W.2d 989

ENER v. GANDY et ux.

No. 7776.

Supreme Court of Texas.

February 11, 1942.

Error from Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Mrs. Ruth Ener against P. P. Gandy and wife for damages suffered in an automobile collision. From an adverse judgment, the plaintiff appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 141 S.W.2d 772, affirming the trial court's judgment, the plaintiff brings error.

Judgments affirmed.

Howth, Adams & Hart and L. Maston Meagher, all of Beaumont, for plaintiff in error.

Adams & Hillin and Synnott & Smith, all of Jasper, and J. R. Beck, of Beaumont, for defendants in error.

SHARP, Justice.

This suit was filed by Mrs. Ruth Ener against P. P. Gandy and wife, for damages suffered in an automobile collision. The injuries resulted from a collision between Mrs. Ener's car and an automobile owned by P. P. Gandy, which was being operated by his minor son, Leon Gandy. Trial was to a jury, and at the conclusion of the evidence the trial court instructed a verdict in favor of the defendants. Plaintiff prosecuted an appeal to the Court of Civil Appeals, and the judgment of the trial court was affirmed. 141 S.W.2d 772.

The parties will be designated herein as they were in the trial court.

The opinion of the Court of Civil Appeals sets out in detail the pleadings and the testimony of both plaintiff and defendants, and we refer to that opinion for such detailed statement. We shall refer to such pleadings and testimony as relate to the issues discussed in this opinion. Leon Gandy is not a party to this suit. At the time of the collision he was accompanied by his mother.

Plaintiff alleged in substance as follows: That she sued P. P. Gandy and wife for damages suffered by her in an automobile collision in Jasper County, wherein her husband, William Ener, and her son, Henry Adolphus Ener, were killed, she suffered serious personal injuries, and her automobile was greatly damaged. She further alleged that on November 13, 1936, while she and her deceased husband and son were driving towards Beaumont on the public highway, near the town of Kirbyville, another car, belonging to defendants, driven in the opposite direction, ran into her car, resulting in the injuries above stated. She further alleged that at the time of the collision defendants' car was being operated by their son, Leon Gandy, and Mrs. Gandy was riding in the car with him. Leon was about seventeen years old, and was operating said automobile at the instance of the defendants, or else with their consent, express or implied, and at said time and place was performing a family purpose in the operation of said automobile and was acting as the agent of the defendants. Plaintiff further alleged that at the time of the collision said Leon was driving the family car with the consent of P. P. Gandy, on a mission involving the moral, intellectual, and material welfare of the said Leon Gandy, and that in such mission his parents had a direct interest; that the said Leon Gandy was a member of the Hemphill High School football team, and together with his mother and some other parties was on his way to play a game, as a member of the football team, with the Kirbyville High School; that it was part of the high school activities of the said Leon Gandy to play football for his school, and for such activity he received credit in his school work; that both the father and the mother of the said Leon Gandy consented to his playing, and encouraged him to play football; which sport or course of education involved the moral, intellectual, and material welfare of the said Leon Gandy, and in which his parents had a direct interest. Other allegations were made by plaintiff.

Defendants answered by general demurrer, general denial, and specially pleaded that defendant P. P. Gandy was not an occupant of the automobile at the time of the collision; that the car was not operated in or about any business of defendants, or either of them; that neither of the defendants participated in the driving of the automobile; that Mrs. Gandy had nothing to do with the operation of the car, but that it was entirely under the control and management of Leon Gandy; that in driving defendants' car Leon was not an agent or an employee of either of the defendants, but that he was doing so for his own pleasure in going to a football game.

Both the trial court and the Court of Civil Appeals held, as a matter of law, that the defendants were not liable for the injuries resulting from the collision of the automobile operated by defendants' son, Leon Gandy, and which resulted in the death of William Ener and son, Henry Adolphus Ener, and in the injuries to Mrs. Ener and the automobile. These decisions were based principally upon the decision in Trice v. Bridgewater, 125 Tex. 75, 81 S.W. 2d 63, 67, 100 A.L.R. 1014.

Plaintiff contends that the Court of Civil Appeals erred in holding as a matter of law that there was no evidence to raise an issue of fact for the jury to determine whether Leon Gandy was acting as the agent or as an employee of his father or mother, or both, at the time of the collision; and erred in holding, as a matter of law,...