Fuller v. Flanagan

• Decision Date: 30 April 1971
• Docket Number: No. 17196,17196
• Citation: 468 S.W.2d 171
• Parties: Samuel FULLER, Appellant, v. Mona Belle FLANAGAN et al., Appellees.
• Court: Texas Court of Appeals

Page 171

468 S.W.2d 171

Samuel FULLER, Appellant, v. Mona Belle FLANAGAN et al., Appellees.

No. 17196.

Court of Civil Appeals of Texas,

Fort Worth.

April 30, 1971.

Rehearing Denied May 28, 1971.

Earl Coleman, Denton, Touchstone, Bernays & Johnston, and Richard Bernays, Dallas, for appellant.

Sam Houston, Lewisville, Hopkins & Kelsey and Richard H. Kelsey, Denton, for appellees.

OPINION

BREWSTER, Justice.

This was a suit for damages for personal injuries that were sustained in a wreck between a car and a pickup. The plaintiffs, Mona Belle Flanagan, George Woodrow Flanagan and Sharon Elizabeth Pannell (formerly Sharon Elizabeth Flanagan) were passengers in the car that was then being driven by Mike Flanagan. The pickup was owned and being operated at the time by Samuel Fuller, the defendant herein. The plaintiffs in the case are W. L. Flanagan and wife, Mona Belle, in their individual capacities, and as next friends of the minor, George Woodrow Flanagan, and Sharon Elizabeth Pannell, who was Sharon Elizabeth Flanagan at the time of the wreck. W. L. Flanagan is the only one of the plaintiffs that was not in the car when the collision occurred.

In a jury trial it was found that the minor, George Woodrow Flanagan was not injured, judgment was rendered against him, and he has not appealed.

The jury found the drivers of both vehicles to have been guilty of negligence that proximately caused the collision. The jury also found in answer to special issues that on the occasion in question Mike Flanagan and Mona Belle Flanagan were upon a joint enterprise and that Mike Flanagan and Sharon Flanagan were also upon a joint enterprise.

Following the return of the jury verdict defendant moved that the trial judge render judgment for him against all the plaintiffs and the plaintiffs Mona Belle Flanagan and Sharon E. Pannell moved that the court disregard the jury findings to the effect that each of them was at the time of the wreck on a joint enterprise with their driver, Mike Flanagan, and render judgment on the rest of the verdict for them.

The trial judge granted the plaintiffs' motion to disregard the jury's answers to the joint enterprise issues and rendered judgment for Mona Belle Flanagan for $9,000 and for Sharon E. Pannell for $1,000 and defendant has appealed.

If the judge had not disregarded the jury findings on the joint enterprise issues, he would have been required to render judgment against these plaintiffs because the driver's negligence would have been imputed to them.

We will refer to the parties as plaintiffs and defendant as they were designated in the trial court.

Defendant has four points of error. He contends that the trial court erred in disregarding the jury finding that Mike and Mona Belle Flanagan were on the occasion on a joint enterprise and that it also erred in disregarding the jury finding that Mike and Sharon E. Pannell were on such occasion on a joint enterprise. The other two points are related to these contentions.

The evidence that bears on the issue of joint enterprise between these parties came from W. L. Flanagan, his wife, Mona Belle, Sharon Flanagan Pannell and Mike Flanagan. This wreck occurred on August 22, 1967. The plaintiff, W. L. Flanagan, was the father of the driver of the car, Mike Flanagan, of the plaintiff Sharon Flanagan Pannell, and of the plaintiff, George Woodrow Flanagan.

At the time of this wreck Mike was 17 years of age, Sharon was 14 years of age, and George Woodrow lacked one day being 7 years of age. Mona Belle Flanagan was not the natural mother of these Flanagan children. She had married their father, W. L. Flanagan, on August 4, 1967, which was about 3 weeks before this wreck. These Flanagan children were still living at home on August 22, 1967. Mike was not a plaintiff in the case. He had a driver's license and had had it for about a year before August 22, 1967. At this time Sharon had a beginner's license which permitted her to drive as long as a person over 21 years old who had a driver's license was riding in the front seat with her. She had driven a car some but not a great deal prior to the time of the wreck. Sharon was single at the time of the wreck, going to school, and did not marry until July 3, 1969, which was about one year and 10 months after the wreck. Mona Belle Flanagan on August 22, 1967, was employed and it was her day off. The children, Mike and Sharon, had worked and saved some of their money and were in need of school clothes, since at that time the start of school was near. The following day, August 23, was to be the 7th birthday of George Woodrow Flanagan and no birthday present had yet been purchased for him. The members of the family were all talking and agreed that August 22, 1967, would be an excellent time to accomplish two missions at the same time by going from Frisco, where the family home was located, to Denton and there shopping for school clothes for Mike and Sharon and shopping for a birthday present for them all to give the 7 year old boy. The father and husband, W. L. Flanagan, did not go on this shopping trip with these other members of the family. He was working at the time. Mike, Sharon, George Woodrow and their stepmother, Mona Belle Flanagan, were all enroute from Frisco to Denton to accomplish this shopping mission when the wreck in question occurred. At the time of the wreck Mike was driving the car. Mrs. Mona Belle Flanagan, the stepmother, was then sitting next to Mike in the middle of the front seat and Sharon was at that time sitting on the right of the front seat next to Mrs. Flanagan. Mrs. Mona Belle Flanagan was on August 22, 1967, 51 years of age and did not have a driver's license. When she was about 17 years old she had driven a car but did not know how to drive one of the modern cars. On this trip she was not making any effort to tell Mike how to drive. She did not feel that she was in charge of the group. She considered it a family shopping trip that the participants were doing together. Mike's driving on the occasion was not causing her any concern. The automobile in which the Flanagans were making this trip was the property of an older Flanagan boy named Larry. It was the only car in this Flanagan family. Mr. Flanagan had agreed to buy this car from Larry, but no price had yet been agreed upon and Larry had not yet been paid anything on it. Larry and Mr. Flanagan had an agreement whereby the father could use this car and Mr. Flanagan had been using it as the family car for some time before this wreck. When the family discussion arose about making this trip, Mr. Flanagan was present and agreed with them that since Mike had a driver's license that he could drive the rest of the family on the trip. There was no evidence that Mona Bell at any time tried to tell Mike how to drive, but, at the scene, when it appeared that a wreck would occur, Sharon hollered 'slow down' or 'be careful' or words to that effect. She had previously had a course in driver's education. We have set out above all the evidence in the record relating to the joint enterprise issues.

The law is that the trial court had a right to disregard the jury's answers to the two joint enterprise issues only if no evidence of probative force had been offered during the trial on which the jury could have made its findings. Rule 301, Texas Rules of Civil Procedure; Arrington v. Paschall,352 S.W.2d 866 (Dallas Civ.App., 1961, ref., n.r.e.).

In determining whether or not the trial court erred in disregarding the jury's answers to the two joint enterprise issues this appellate court must accept the evidence that was offered during the trial, and all permissible inferences therefrom in the light that is most favorable to the verdict, and must disregard all evidence and inferences therefrom that is contrary to the verdict. Biggers v. Continental Bus System, 154 Tex . 351, 303 S.W.2d 359 (1957); Burt v. Lochausen, 151 Tex. 289, 249 S .W.2d 194 (1952); and Arrington v. Paschall, supra.

A joint enterprise between two or more occupants of a car exists where they have both (1) a joint interest in the object and purpose of the trip and also (2) an equal right, either express or implied, to direct and control the conduct of each other in the operation of the car. El Paso Electric Co. v. Leeper, 60 S.W.2d 187 (Tex.Com.App ., 1933); Nelson v. Fulkerson, 155 Tex. 298, 286 S.W.2d 129 (1956); Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65 (1949); and Satterfield v. United Auto Supply, Inc., 424 S.W.2d 40 (Fort Worth Civ.App., 1968, aff. in 448 S.W.2d 456.)

THE FOLLOWING RELATES TO MONA BELLE FLANAGAN'S CASE

When we apply the above established principles of law to the testimony presented during the trial of this case, we are convinced that such testimony and all reasonable inferences to be drawn therefrom, made a fact issue for the jury's determination on the question presented by Issue No. 6 of the charge as to whether on the occasion in question the driver, Mike Flanagan, and his stepmother, Mona Belle Flanagan, were upon a joint enterprise. We hold that there was evidence of probative force to justify the submission of the issue to the jury and that it was sufficient to support the jury's finding that a joint enterprise did exist at the time of the wreck between those two parties. It follows that the trial court erred in disregarding the jury's answer to this Special Issue No. 6.

The evidence established as a matter of law that Mrs. Flanagan and Mike Flanagan had a joint interest in the object and purpose of the trip. It raised an issue of fact on the control element of joint enterprise. From the evidence the jury would have been justified in believing that W. L. Flanagan had a right to the possession and control of the car in question by virtue of his agreement with his son Larry; that upon the occasion in question he placed such car under the joint possession and control of his minor son, Mike, and of his wife, Mona Belle, who was the...