Kennedy v. Kennedy
| Decision Date | 06 February 1974 |
| Docket Number | No. 12103,12103 |
| Citation | 505 S.W.2d 393 |
| Parties | John Patrick KENNEDY, Appellant, v. Gene Michael KENNEDY et al., Appellees. |
| Court | Texas Court of Appeals |
Coleman Gay, Gay & Latting, Tom Long, Long, Coleman & Wright, Austin, for appellant.
Kenneth W. Burch, McClure & Burch, Houston, John J. McKay, McKay & Wash, Austin, for appellees.
This is an automobile negligence suit filed in the district court of Fayette County by Greyhound Lines, Inc. against Gene Michael Kennedy and his twin brother, John Patrick. Gene Michael filed a cross-action against Greyhound and his brother for personal injuries . Upon trial to a jury, the court entered judgment in favor of Greyhound against both brothers and in favor of Gene Michael against John Patrick. In this opinion Greyhound Lines, Inc. will be termed Greyhound; Gene Michael Kennedy and John Patrick Kennedy will be referred to as 'Mike' and 'Pat.'
The cause of action arose from an automobile-bus collision between La Grange and Smithville in Fayette County on Highway 71 on November 8, 1968. At that time Mike and Pat were unemancipated minors, and were enroute alone by automobile from El Campo to a deer lease near Lake Buchanan. As a result of the collision the bus was damaged and both brothers suffered serious injuries. By its suit Greyhound sought to recover for damages to the bus, and by his cross-action Mike sought to recover damages for his personal injuries.
One of the problems of proof concerned the identity of the driver of the automobile since both brothers suffered from loss of memory resulting from the collision. In its trial pleadings Greyhound alleged that the driver of the Kennedy automobile, whether Mike or Pat, was guilty of several acts of negligence proximately causing the collision. Greyhound also pleaded that the brothers were operating the automobile '. . . for their mutual and joint objectives and purposes and with equal rights to control the operation of said vehicle, and were engaged in a joint enterprise.'
In his cross-action against Pat and Greyhound, Mike alleged that Pat was driving the automobile and that both Pat and the driver of the bus were guilty of many acts of negligence proximately causing the collision.
Prior to trial Mike dismissed his cross-action as to Greyhound. During the trial of the cause, and after the close of all evidence, counsel for all parties stipulated that Mike and Pat '. . . had a joint interest in the object and purposes of the trip, an equal right expressed and implied to direct and control each other in the operation of the vehicle as of the time of the collision in question.'
The case was submitted to the jury on twenty special issues. In answer to those issues the jury found that Pat was the driver of the automobile at the time of the collision and that he committed several acts of negligence which proximately caused the collision. The jury found further that the combined cost of repairs and the loss of use of the bus to Greyhound was $8,000. With respect to the issues concerning Mike's cross-action, the jury answered in the sum of $2,000 for past psysical pain and suffering; $5,280 for loss of earning capacity in the past; $3,217 for past medical and hospital care; and $1,250 for future medical and hospital care.
Based upon the answers of the jury, and necessarily upon the stipulation of counsel respecting a joint enterprise, the court entered judgment in favor of Greyhound against both brothers, jointly and severally, for $8,000, and in favor of Mike against Pat for $11,458.10.
With respect to the judgment in favor of Greyhound, only Mike has perfected an appeal. Pat has appealed that part of the judgment against him in favor of his brother.
Mike's single point of error is that the court erred in entering judgment against him jointly and severally with his brother in favor of Greyhound grounded upon the theory of joint enterprise, since at the time of the collision both he and his brother were unemancipated minors, and since negligence of one member of a joint enterprise may not be imputed to another member of the enterprise, if a minor.
In Texas an infant, since he has no capacity to appoint an agent, is not liable under the doctrine of Respondeat superior for the torts of an alleged agent. Sturtevant v. Pagel, 109 S.W.2d 556 (Tex .Civ.App.1937), aff'd, 134 Tex. 46, 130 S.W.2d 1017), see 16 Tex.L.Rev. 586 (1938). The theory of joint enterprise is based upon the principles of agency whereby each party to the enterprise is the agent of the other and responsible for the negligent acts of the other. Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65 (1949). See University of Texas: Keeton, Imputed Contributory Negligence,13 Tex.L.Rev. 161 (1935). Accordingly, the negligence of one member of a joint enterprise may not be imputed to another member of the enterprise, if a minor. Wanda Petroleum Co. v. Hahn, 489 S.W.2d 428 (Tex.Civ.App.1972, writ ref'd n.r.e.), Fuller v. Flanagan, 468 S.W.2d 171 (Tex.Civ.App.1971, writ ref'd n.r.e.), Fernandez v. Lewis, 92 S.W.2d 305 (Tex.Civ.App.1936, writ dism'd). 1
Greyhound emphasizes that though the title to the Kennedy automobile was in their father, the brothers had paid for the vehicle, and that in fact that were co-owners. Greyhound then argues that inasmuch as the driver and rider were co-owners a different rule should obtain, and that the negligence of the driver should be imputed to the rider.
We do not attach the same significance to the fact of co-ownership of the automobile as does Greyhound. Greyhound specifically pleaded joint enterprise, and facts were stipulated that constituted joint enterprise. In our view, co-ownership in the automobile by the driver and the rider is but another element of proof tending to show joint enterprise, and is not, of itself, a separate basis for liability. 2
Pat urges that the answer of the jury to Special Issue No. 1, that he was driving the automobile at the time of the collision, was so contrary to the great weight and preponderance of the evidence as to be clearly wrong.
A brief summary of the evidence pertaining to this point follows. Both Mike and Pat were severely injured in the...
To continue reading
Request your trial
-
Morrell v. Finke
...of an unemancipated minor. Id.; Kennedy v. Mo. Pac. R. Co., 778 S.W.2d 552, 555 (Tex.App.-Beaumont 1989, writ denied); Kennedy v. Kennedy, 505 S.W.2d 393, 397 (Tex.Civ.App.-Austin 1974, no writ); Bering Mfg. Co. v. Peterson, 28 Tex.Civ.App. 194, 67 S.W. 133, 135 (Tex.Civ.App.1902, writ dism......
-
Johnson v. Holly Farms of Texas, Inc., 07-85-0224-CV
...sustained. that the negligence of an alleged agent cannot be imputed to a minor under the doctrine of respondeat superior. Kennedy v. Kennedy, 505 S.W.2d 393, 395 (Tex.Civ.App.--Austin 1974, no writ); Fuller v. Flanagan, 468 S.W.2d 171, 176 (Tex.Civ.App.--Fort Worth 1971, writ ref'd n.r.e.)......
-
Sarabia v. McNair, No. 2-09-160-CV (Tex. App. 4/8/2010)
...as to the minor's estate."); Kennedy v. Mo. Pac. R.R. Co., 778 S.W.2d 552, 555 (Tex. App.-Beaumont 1989, writ denied); Kennedy v. Kennedy, 505 S.W.2d 393, 397 (Tex. Civ. App.-Austin 1974, no writ); Bering Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S.W. 133, 135 (Tex. Civ. App. 1902, wr......
-
Hermann Hosp. v. Martinez
...S.W.2d 661, 666 (Tex.1983); Kennedy v. Missouri Pacific R. Co., 778 S.W.2d 552, 555 (Tex.App.-Beaumont 1989, writ denied); Kennedy v. Kennedy, 505 S.W.2d 393, 397 (Tex.Civ.App.-Austin 1974, no writ). The record in this case shows that a "claim for medical expenses incurred on behalf of [Edg......