Landers v. Overaker

• Decision Date: 06 April 1940
• Docket Number: No. 12859.,12859.
• Citation: 141 S.W.2d 451
• Parties: LANDERS v. OVERAKER et al.
• Court: Texas Court of Appeals

141 S.W.2d 451

LANDERS v.OVERAKER et al.

No. 12859.

Court of Civil Appeals of Texas. Dallas.

April 6, 1940.

Rehearing Denied June 1, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Action by W. H. Landers against C. E. Overaker and others, to recover for personal injuries suffered when plaintiff was struck by door of automobile.From a judgment in favor of all the defendants, plaintiff appeals.

Affirmed in part, and reversed and remanded in part.

Bowyer, Gray, Thomas & Jaffe, of Dallas, for appellant.

Coke & Coke and Thomas G. Murnane, all of Dallas, for appellees.

YOUNG, Justice.

This suit in the District Court was for personal injuries, by W. H. Landers against C. E. Overaker and wife, his mother, Mrs. Josephine Overaker, and sister, Miss Maude Overaker; the time and place being about seven o'clock in the evening of October 15, 1936, adjacent to Melrose Court, an apartment hotel situated on Cedar Springs Avenue, Dallas.On the trial, all defendants requested peremptory instructions when plaintiff rested, which were refused.Similar requests were urged at the close of the testimony, that of Miss Maude Overaker being granted, and a jury verdict was returned upon many issues touching the remaining parties.Thereafter, defendants, Mr. and Mrs. C. E. Overaker, seasonably and upon notice, filed motions for judgment non obstante veredicto, which were overruled; a like motion of Mrs. Josephine Overaker was sustained.At the same time, motions of Mr. and Mrs. Overaker (husband and wife) for judgment on the jury answers were sustained; that of the elder Mrs. Overaker and of plaintiff overruled, proper exceptions being taken by all parties to such action of the trial court.Damages were found for plaintiff in the sum of $1,800, but the final judgment was in favor of defendants, with a consequence of this appeal.

The trial pleadings of plaintiff set forth that at the time of the accident, he had finished his day's work and was standing in a public place on the west side of Cedar Springs Avenue, just north of its intersection with Oak Lawn Avenue, in the parkway between the curb and sidewalk; that he was waiting at such point for a street car, near to, or leaning against a telephone pole set in the parkway, on which was a sign indicating that the place was a regular street car stop; that a car driven by Mrs. C. E. Overaker, Mr. Overaker in front, his mother and two sisters on the rear seat, approached slowly along Cedar Springs Avenue from the north; that said automobile party were members of one family and on a joint mission "for the health, welfare, comfort or pleasure of said family and each of them, the exact nature of said joint mission being unknown to plaintiff, but well known to each defendant;" that defendants intended to stop said car at the curb near plaintiff, for one of them to alight.In doing so, the door of the car prematurely opened as it moved toward plaintiff, protruding over the curb and into the parkway where he was standing; that plaintiff was thereby caught between said door and the light pole, to his great injury; and that the defendant who opened the car door, pursuant to said joint enterprise, was either the mother, Mrs. Josephine A. Overaker, or sister, Maude Overaker.

Plaintiff further alleged specific acts of negligence committed by the several defendants, and that, "* * * such acts each were a direct and proximate cause of injuries suffered by the plaintiff."The detailed charges and counter charges of the parties are reflected in the jury issues and answers, which are, in substance: (1) That plaintiff received physical injury at the time and place; (2) that Mrs. C. E. Overaker drove the automobile in question too near the curb for the safety of plaintiff, but that such was not negligence; (3) that Mrs. C. E. Overaker did not fail to keep a proper lookout; (4) that Mrs. C. E. Overaker drove the automobile at the time with the right rear door open, but such was not negligence; (5) that neither C. E. Overaker nor his wife discovered and realized plaintiff's perilous position in time, by the use of all available means, to have avoided the injuries to plaintiff; (6) that defendantMrs. Josephine Overaker opened the door of the automobile before it stopped, which was negligence and a proximate cause of the injuries to plaintiff; (7) that C. E. Overaker, his wife, and Mrs. Josephine Overaker were engaged in a joint enterprise at the time, a necessary part of which was the stopping of the automobile near the entrance of Melrose Court(the place of the occurrence); (8) that the act of opening the right rear door of the car caused said door to extend over the west Cedar Springs road curb, and into the parkway on the west side of said street, which was negligence and a proximate cause of the injuries; (9) that Mrs. C. E. Overaker drove the automobile with the right rear door open and extending over the curb on Cedar Springs road, but was not negligent in so doing; (10) that Mrs. C. E. Overaker was not driving the car at a greater speed than was reasonably safe; (11)plaintiff's injuries were not the result of an unavoidable accident; (12) that Mrs. C. E. Overaker could not reasonably have anticipated or foreseen that the right rear door of the car might be opened by someone sitting in the rear thereof, just before it reached the telephone post;(13) that the open door of the Overaker car was observed and discovered by plaintiff in time for him to have avoided injury; but that plaintiff's failure to remove from such position was not negligence; (14) that plaintiff did not lunge or fall forward against the automobile as it passed the telephone pole; (15) nor was his standing and leaning against the north side of the said pole contributory negligence.

It is readily discernible from the above jury findings that Mr. and Mrs. C. E. Overaker were freed of all fault relative to this avoidable accident, except as to the affirmative answers to the "joint enterprise" issues, in which event, the negligence of the mother, Mrs. Josephine Overaker, in opening the door of the car before it stopped, would be imputed to the other defendants connected with such enterprise.El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187, 189.The family ride of defendants, upon which plaintiff predicates his claim of joint liability, arose in this wise: Mrs. C. E. Overaker owned the car and, with her husband also in the front seat, was driving it from their home to the residence of Mrs. Josephine Overaker, in the same vicinity of North Dallas.Residing with the latter at the time were her two daughters, Miss Maude Overaker and Mrs. Neville.The purpose of the trip by Mr. Overaker and wife was to take the mother and sisters for an automobile ride.The invitation was accepted and the three entered the rear compartment, Mrs. Josephine Overaker taking the right-hand seat, and Miss Maude Overaker, who said she would ride as far as Melrose Court, a few blocks away, being seated on the left side of the car.The automobile, thus occupied and driven, proceeded down Cedar Springs road to said apartment hotel where it slowed down for the purpose of stopping at the pedestrian entrance.The telephone pole, at which plaintiff was standing, was alongside the west curb in the parkway, and from ten to fifteen feet north of said entrance.Further up the same curb to the north, was a fire plug, and beyond that a driveway from the street to the rear of the hotel.Plaintiff claims that the right rear door of the car opened and extended over the curb just after the car passed the driveway, and remained open as it moved slowly along to the lower entrance; that he was thereby caught between said door and the post, sustaining serious injuries.On the other hand, defendants contend the said car door was not opened until after it had passed the telephone pole, unless by plaintiff himself in lunging or falling against it.We think that, under the whole of the evidence, and all inferences properly deducible therefrom, the issue of joint mission or joint enterprise was not raised.A prime element of this relationship, as defined by the court, was: "* * * an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance."SeeEl Paso v. Leeper, supra.In the absence of any testimony that the rear occupants of the car had any right to control its movement during the casual ride being undertaken (back-seat drivers, as it were), no other inference can be drawn of the existing status of the parties than that of simply host and guests.The determining factor in the cases bearing upon this species of imputed negligence (joint enterprise) is the legal right of...