McCormick v. Stowe Lumber Co.

• Decision Date: 11 April 1962
• Docket Number: No. 10938,10938
• Parties: Joyce McCORMICK, Appellant, v. STOWE LUMBER COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 450

356 S.W.2d 450

Joyce McCORMICK, Appellant, v. STOWE LUMBER COMPANY, Appellee.

No. 10938.

Court of Civil Appeals of Texas, Austin.

April 11, 1962.

Rehearing Denied May 2, 1962.

Taylor & Taylor, Temple, Byrd, Davis & Eisenberg, Austin, for appellant.

Brown, Sparks & Erwin, Austin, for appellee.

RICHARDS, Justice.

This is a summary judgment case. Suit was originally brought by Joyce McCormick, appellant, against Stowe Lumber Company, appellee, to recover damages for personal injuries sustained by appellant while riding in an automobile driven by Lou Anne Keller which collided with the rear-end of a truck owned by Stowe Lumber Company. In the first original petition appellant joined Lou Anne Keller as a party defendant, alleging that on June 13, 1959 at the intersection of Highway 81 and Farm Road 346 in Belton, Texas the car driven by Lou Anne Keller, in which appellant was riding as a passenger, was struck by a truck owned by Stowe Lumber Company and operated by its employee, and as a result of the collision appellant was injured; that the injuries suffered by appellant were 'directly and proximately' caused by the negligence of Lou Anne Keller and also by the negligence of the driver of appellee's truck, each being guilty of many acts of negligence which jointly and severally proximately caused the injuries suffered by appellant.

Appellee Stowe Lumber Company moved for summary judgment against appellant upon the ground that the pleadings together with depositions of Lou Anne Keller and appellant showed as a matter of law that defendant Lou Anne Keller was negligent at the time of the collision, which negligence was a proximate cause of the collision and the injuries sustained by appellant; that at the time fo the collision appellant and Lou Anne Keller were engaged in a joint enterprise and taat the negligence on the part of Lou Anne Keller was imputed to appellant. Appellant filed her reply to the motion for summary judgment denying that appellee was entitled to summary judgment and in the alternative in the event appellee was granted a summary judgment, appellant asked for summary judgment in her favor against Lou Anne Keller, which reply was supported by appellant's affidavit which in substance denied that appellant had any control over Lou Anne Keller who was the driver of the automobile at the time of the collision. Lou Anne Keller answered by special exceptions, general denial and specially denied that she was guilty of any negligence proximately causing the collision.

On February 17, 1961 the Trial Court heard appellee's motion for judgment and considered the pleadings then on file, the depositions of appellant, Lou Anne Keller and William T. Headrick, a police officer for the City of Belton who had investigated the collision which occurred within the city limits of the City of Belton, and the hearing having concluded on the same day, took the motion under advisement.

On March 23, 1961 the Trial Court granted appellee's motion for summary judgment that appellant take nothing against it, from which adverse judgment this appeal was perfected. On March 31, 1961 the Trial Court heard appellant's motion for summary judgment against Lou Anne Keller and finding tht there were disputed issues of material fact, denied the motion. At appellant's request, the Court then severed her cause of action against Lou Anne Keller from her cause of action agaist appellee.

For her first point of error appellant asserts that the Trial Court erred in holding as a matter of law that appellant and Lou Anne Keller were on a joint enterprise at the time of the collision.

Appellant Joyce McCormick and Lou Anne Keller were longtime friends having grown up together in Seguin. About May 1, 1954 Lou Anne moved to Joyce's apartment in Austin as her roommate and since Joyce did not have a car they used Lou Anne's 1956 Studebaker. When they were together usually Lou Anne drove although Joyce sometimes drove the car in Austin. Several weeks before the collision Joyce and Lou Anne decided they wanted to go to Gatesville, Texas to attend a rodeo to be held on the day of the collision.

Lou Anne's car was not operating properly so several days before the collision Lou Anne and Joyce took the car to Seguin to be repaired, and while in Seguin they borrowed a car belonging to Joyce's mother and father, Mr. and Mrs. Kunkel, and returned to Austin. Shortly after noon on June 13, 1959 Joyce and Lou Anne started from Austin to Gatesville in the Kunkel car with Lou Anne driving. At some point between Round Rock and Georgetown Joyce went to sleep and was still asleep at the time of the accident so that she was entirely ignorant as to how or why the accident occurred.

The collision occurred within the city limits of Belton, Texas at the intersection of U. S. Highway 81 and Farm Road 436 at about 5:30 P.M., at which time it was broad daylight, the visibility was clear and the roadway was dry. At the place where the collision occurred U. S. Highway 81 is a divided highway with one 2-lane paved roadway for southbound traffic and one 2-lane paved roadway for northbound traffic, which are separated from each other by about 10 feet of unpaved area. At or near its intersection with Farm Road 436, the northbound roadway of U. S. Highway 81 runs generally north and south and Farm Road 436 runs generally east and west, the northbound roadway curving gently to the right but not enough to interfere with the forward vision of persons driving thereon. Farm Road 436 is a paved 2-lane highway and intersects at right angles with and forms a deadend at the northbound roadway of U. S. Highway 81, the latter having a broad stripe dividing the highway into two traffic lanes. For a distance of about 20 feet immediately south of the intersection the paved portion of the northbound roadway widens on the east side to make a narrow third land for the use fo drivers turning to their right off of the northbound roadway to Farm Road 436.

Immediately prior to the collision an empty trailerrig owned by appellee was travelling the northbound roadway of U. S. Highway 81 and approaching its intersection with Farm Road 436. The Kunkel car was following the truck in the same lane on the northbound roadway of U. S. Highway 81. The collision occurred when the right front of the Kunkel car struck the left rear of the trailer.

In granting appellee's motion for summary judgment, the Trial Court held that as a matter of law, appellant andLou Anne Keller were engaged in a joint enterprise at the time and on the occasion of the collision of the Kunkel car with appellee's truck. If appellant and Lou Anne Keller were engaged in a joint enterprise then as a matter of law if Lou Ann Keller was guilty of negligence, such negligence is legally imputed to appellant. El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187.

In summary judgment proceedings under Rule 166-A, Texas Rules of Civil Procedure, the burden rests upon the movant to successfully negate the existence of genuine issues of material fact and all doubts as to the existence thereof must be resolved agaisnt the movant. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931.

Appellant asserts that the holding of the Trial Court that appellant and Lou Anne Keller were engaged in a joint enterprise was based upon the decision of the Commission of Appeals in El Paso Electric Co. v. Leeper, supra, but contends that in that case there was no evidence of a course of conduct whereby one party drove exclusively while in the instant case there was evidence that Lou Anne Keller drove exclusively upon the highway not only as a matter of custom and practice but in reliance upon an express understanding which would raise an issue of material fact precluding the granting of the summary judgment. In view of appellant's contention it is necessary to compare the factual situation disclosed in the opinion in the Leeper case with the uncontradicted factual situation presented to the Trial Court in the summary judgment proceedings.

As announced in the Leeper case, the rule of law governing the question of joint enterprise is that:

'Where persons are engaged in a common of joint enterprise and each has an equal right to direct and control the conduct of the others with respect to acts or omissions which contributed to cause an injury to one of them, the negligence of oen of such persons is imputed to each of the others.

'* * * Occupants of a conveyance are supposed to be on a joint expedition where they have not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.'

The opinion in the Leeper case has been cited and expressly approved in Nelson v. Fulkerson, 155 Tex. 298, 286 S.W.2d 129, 132; Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65, 68; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199; Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474, 476. Therefore if a driver and a passenger have a common purpose and object in making an automobile trip and if the passenger has an equal right, either express or implied, to direct and control the conduct of the driver in the operation of the vehicle, there is a joint enterprise and the negligence of the driver will be imputed to the passenger.

Since the right to control the conduct of the driver and not the actual control of the driver's conduct constitutes the legal test, the question to be decided is: Did appellant have an equal right to control the conduct of the driver, Lou Anne Keller who was driving and operating the Kunkel automobile at the time of the collision?

In the Leeper case Miss Leeper sued El Paso Electric Company for damages for personal injuries alleged to have been received by her as a result of the negligence of the Electric Company. The evidence showed that while the car in which Miss Leeper was riding...