Nelson v. Fulkerson

• Decision Date: 25 January 1956
• Docket Number: No. A-5115,A-5115
• Citation: 155 Tex. 298,286 S.W.2d 129
• Parties: Tom F. NELSON, Petitioner, v. C. P. FULKERSON, Respondent.
• Court: Texas Supreme Court

Page 129

286 S.W.2d 129

155 Tex. 298

Tom F. NELSON, Petitioner, v. C. P. FULKERSON, Respondent.

No. A-5115.

Supreme Court of Texas.

Jan. 25, 1956.

Richard F. Stovall, Floydada, for petitioner.

Cade & Bowlin, Lubbock, for respondent.

BREWSTER, Justice.

This is a suit for damages for personal injuries sustained by plaintiff, Tom Nelson, when an automobile driven by his minor son, Gene, collided with an automobile with trailer attached driven by C. P. Fulkerson, defendant.

Fulkerson pleaded a cross-action against both Nelsons for damages for injuries alleged to have been suffered by him in the collision. Gene Nelson filed a cross-action against Fulkerson for injuries sustained by him.

After a jury verdict on special issues, the trial court denied both Tom Nelson and Gene Nelson any relief against Fulkerson, and Fulkerson any relief against the Nelsons.

Upon appeal of Tom Nelson the Court of Civil Appeals reversed and remanded the cause. 277 S.W.2d 286.

Both Fulkerson and Tom Nelson filed applications. Gene Nelson filed none. We granted Fulkerson's because we were of the tentative opinion that it presented error; we granted Tom Nelson's because of granting Fulkerson's.

Fulkerson presents 12 points of error, but he briefs them together 'in the interest of both clarity and brevity'. Point 10, asserting error by the Court of Civil Appeals in not adopting the minority opinion, is without substance, hence it will not be considered further.

Fulkerson's application was granted on the first point, which urges that since both Nelsons admitted facts which established a joint venture as a matter of law, there was no fact issue for the jury, and the trial court correctly entered judgment against Tom Nelson upon a finding of negligence against the minor son, Gene Nelson, who was driving the car in which both were riding.

All 10 remaining points raise, in some way or other, this question of joint venture.

According to 48 C.J.S., Joint Adventures, § 1, pp. 801 to 804, the doctrine of joint adventure originated with our American courts, and is not based on statute; as a legal concept it is therefore of recent origin and still in the process of development, without, as yet, any fixed boundaries. So it is not surprising that we have joint venture, joint adventure, and joint enterprise often used interchangeably and meaning the same thing.

A recent decision by this Court is Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65. It holds that a joint enterprise exists where there is not alone a joint interest in the purpose of the enterprise but also an equal right, express or implied, to direct and control the conduct of each in operating the conveyance in question, citing El Paso Elec. Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 198; Garrett v. Brock, Tex.Civ.App., 144 S.W.2d 408, error dismissed, correct judgment; and Ener v. Gandy, 138 Tex. 295, 158 S.W.2d 989. After stating these two requisites, 38 Amer. Jur., Negligence, p. 924, sec. 237, adds: 'Each must have some voice and right to be heard in its control and management.' (Italics ours.)

There is no dispute as to the joint interest of the Nelsons in the purpose of the trip in question. It was for both to do farm work to support the Nelson family of which they were members, Gene as a minor son.

On the element of joint control the testimony comes exclusively from the Nelsons, and from it we have concluded that as between Tom and Gene Nelson a joint control was established as a matter of law.

In the Straffus case, supra, Carl Straffus, 82 years of age and owner of the car, was the father of Hilda Straffus, 45, who was driving the automobile when it collided with the motor car driven by the Barclays. Hilda's mission was to buy some groceries and do her turn at cleaning up the church. The father gave Hilda some assistance by going to the church and helping her move benches. On the issue of joint control, it was shown that on account of his age Carl Straffus never drove the car when someone else was available to drive it; that Hilda usually drove it for him; that on the occasion in question, and just before Hilda turned to the left and across the path being travelled by the car of the plaintiff Barclay, she and Carl had some conversation about the advisability of attempting to cross at that time, and Carl agreed it was all right to do so. Also, we said that a verdict against Carl could have been sustained under the rule prevailing in this State that the mere presence of a car owner while his car is being driven by another is evidence that the driver is then his servant or agent; that is, as expressed in Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 197, the owner's presence in her own car being driven by a chauffeur is a fact from which the inference could reasonable be drawn that she had control over the driver, but it does not conclusively prove her right of control.

In the Rankin case the trial court found on an instructed verdict that the driver at the time of the accident was her agent, and not the agent of Nash-Texas Company. The Court of Civil Appeals affirmed. We held this was error, because the plaintiff introduced evidence which was 'at least sufficient to support a finding' that at the time of the accident he was engaged in the work of Nash-Texas Company and under its control, rather than under the control of Mrs. Rankin. Briefly, that testimony was that the Rankin car stalled after it...